Timber tree as movable or Immovable property

Submitted to:
Dr. (Mrs.) Kiran Kori
(Assistant Professor, Law)

Submitted by:
Aditya Shah
(Semester 4, Section-B, Roll No. 11)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Opp. Jungle Safari
Atal Nagar, District Raipur
Chhattisgarh 492002
 TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................i
INTRODUCTION...........................................................................................................................1
PROPERTY.....................................................................................................................................1
MOVABLE PROPERTY................................................................................................................1
IMMOVABLE PROPERTY...........................................................................................................2
IS STANDING TIMBER MOVABLE, OR IMMOVABLE PROPERTY ?..................................2
CONCLUSION................................................................................................................................3

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INTRODUCTION
Prior to when The Transfer of Property Act came into effect 1882 (“the TPA” hereinafter),
transactions related to the transfer of property between parties in India were governed by, equity,
good conscience and the doctrine of justice. Needless to say, an uncodified system like that led to
many conflicting judicial decisions in the past. The Act tried to clear numerous doubts regarding
the matter of property and its transfer by laying down clear principles.
In cases like Baijnath v. Ramdhar (1962), Shantabai v. State of Bombay (1958), and
Pathumuthumma v. Khaja Moideen (2019), a peculiar conundrum came to light. In general, on
the basis of physical mobility, property is of two types: movable property – ones which can be
moved in space and immovable property which are always stationery – like land or buildings.
The issue arises when we talk about timber trees. Trees can be broadly categorized in two groups
– fruiting trees – which produce fruit and timber trees – which produce timber i.e. wood used for
building things like houses and furniture. What kind of property is a fruiting tree? Obviously an
immovable, since it cannot be moved or else its fruiting capabilities will be jeopardized. Then,
what kind of property is a timber tree? Since it is grown for the purpose of cutting it down for
timber someday, but also, to fell it someday – the tree needs to grow to a certain height and girth
that would require a certain amount of time attached to the land – it’s exact standing on whether
a timber tree is movable property or immovable is obfuscated.
In the following pages, we discuss the problem stated above, with the help of certain case laws
and certain acts that mention the kinds of properties in question. We discuss the meanings of
each of those kinds of properties in detail before diving into specific judgements regarding the
matter and finally concluding the topic.

PROPERTY
The word property can mean a lot of things. Not limited to tangible things holding value,
property can also be intangible (intellectual property, stock holdings, bonds etc. The TPA, 1882
divides the types of property on the basis of its mobility – movable and immovable property.

MOVABLE PROPERTY
Movable property is one which can be shifted from a place to a different one with relative ease
and no damage. The TPA, 1882 does not explicitly define the term “movable property” and so,
in absence of a special decision; it is assumed that the general definition will prevail.
In the General Clauses Act, Section 3(26) provides a definition of movable property, which is
simply defined as property of any type that is not immovable property. The definition given in
the Act is a negative one, meaning it defines movable property in terms of what it is not.
As defined in Section 2(9) of the Registration Act1 of 1908, movable property encompasses a
wide range of items, including standing timber, crops and grass, fruit and juice in trees, and any
other type of property that is not considered immovable property.

1
Registration Act, §2(9) , No. 16, Acts of Parliament, 1908 (India).

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According to Section 22 IPC, the definition of "property" encompasses all tangible assets,
excluding land and anything attached to the earth or securely fixed to something that is attached
to the earth.

IMMOVABLE PROPERTY
It's not possible to move immovable property from one location to another. According to the
Registration Act, immovable property includes things like land, buildings, and rights to benefits
related to the land, such as rights to ways, lights, and fisheries, as well as things that are attached
to the earth or fastened to it permanently. However, items that are not considered immovable
property include standing timber, crops, and grass.2.
According to the General Clauses Act, things like land, benefits related to the land, and objects
that are attached to the earth or securely fixed to something that is attached to the earth 3 are
immovable property.
Section 3 of The TPA also explicitly excludes the following from immovable properties:
growing crops, grass and standing timber.

In Sukry Kurdepa v. Goondakull4, learned Judge Holloway J differentiated between these

two kinds of property stating that movability is “the capacity in a thing of suffering (to
suffer) alteration of the relation of place” and immovability is the “incapacity of such
alteration”. Thus, if a thing cannot change its place “without injury to the quality by
virtue of which it is, what it is”, it is immovable. He also stated that trees attached to the
ground are immovable till they are attached, and movable after severance from the
ground.

IS STANDING TIMBER MOVABLE, OR IMMOVABLE PROPERTY?

Both the Registration Act and The TPA exclude standing timber from the definition of
immovable property. “Standing timber” has not been defined in any of the previously mentioned
enactments. Cases like Nanhe Lal v Ram Bharose, Ram Kumar v Krishna Gopal and Kunhikoya
v Ahmed Kutty have established in India that trees like neem, sheesham 5, babul6 and teak7 trees
are considered timber trees.
Timber is wood suitable for building/repairing anything – a house, furniture, boat etc. Standing
timber means a tree that is suitable for the mentioned purposes and thus, is a tree that is meant to
be severed from the ground and be converted into timber so shortly that for all practical
purposes, it can be viewed as timber, even though standing. But, if the tree is not meant to be
severed from the ground in a reasonably short amount of time, it will continue to derive
nourishment that is not negligible from the soil it stands on, and still be a tree. Just because we
2
Registration Act, §2(6) , No. 16, Acts of Parliament, 1908 (India).
3
General Clauses Act, §3(19) , No. 20, Acts of Parliament, 1977 (India).
4
(1872) 6 Mad. H.C 71
5
(1938) ILR All 115
6
AIR 1946 Oudh 106 .
7
AIR 1952 Mad. 39

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term it “standing timber” doesn’t mean any change in the material fact that it is a tree attached to
the ground and derives nourishment for itself from the soil. Timber does not derive any
nourishment from soil. Timber is movable property. Timber that is standing, even though derives
nourishment from the soil, since that nourishment is negligible, is movable property. If timber is
left standing ‘for an appreciable length of time, they must be regarded as trees and not as
timber8.’
Thus, before a tree is termed standing timber, it should be in a state that if severed from the
ground at the instant, it would be useful as timber. Also, when it is in that state, it should be
severed reasonably early. Thus, the intention to sever a tree from the ground also plays a big role
in it.
In the case of Shantabai v. State of Bombay, the question whether registration was required of a
certain deed granting the petitioner - rights to go to specific areas of the land to cut and acquire
bamboos, teak and fuel-wood came up. If the trees in question were regarded standing timber 9 at
the date of the document, the deed wouldn’t require registration. And if the trees at the date of
the deed were not standing timber (immovable property); the deed would require registration.
Keeping in mind the intention, signified by felling at an early date of certain trees of certain size
and girth – they were held to be movable property; while another set of trees, not severed but
covered by the grant were held to be immovable property by the Supreme Court of India.
Where a three-judge bench of the High Court of Allahabad faced the challenge of determining
whether Sisham and Nim trees were considered "standing timber", i.e. not immovable property.
The majority of judges ruled that whether a tree is considered timber or not is based on its natural
characteristics and how it is commonly used, not on the owner's intention to cut it in the future.
However, the third judge held that the intention of the parties involved and the nature of the
transaction were the deciding factors in such cases. If the circumstances indicated that the parties
intended to treat the tree as timber, it would be considered as standing timber.10.
In a 2019 judgement, the Kerela High Court has also cited the Shantabai v. State of Bombay
judgement of the Supreme Court of India to rule that trees that were left to be grown without any
action to cut them in a reasonable time would not constitute “standing timbers/movable
property” and would instead be “growing trees/immovable property” on the date of the sale 11. A
sale of immovable property must be registered mandated by Section 17 of the Registration Act.

CONCLUSION
It is important to note that the classification of standing timber as movable or immovable
property can have significant legal implications, affecting issues such as ownership, transfer of
title, and taxation. In some cases, the classification may also impact the management and use of
forests, as well as the rights of indigenous peoples and local communities. In India, standing
8
Shrimati Shantabai v. State Of Bombay And Others 1959 SCR 1 265
9
Standing timber is movable property for purposes of Transfer of Property and Registration Acts.
10
Baijnath v. Ramadhar, AIR 1963 All 214
11
Pathumuthumma (Died, Legal Heirs Impleaded) & Another v. Khaja Moideen & Others 2019 KLT 3 265

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timber is considered movable property while timber trees are considered immovable property.
The distinction between standing timber and timber trees is determined by how soon it is going
to be cut for timber, as discussed in Shantabai vs State of Bombay.