an analysis of profit a prendre cs ju

8/18/2019 An Analysis of Profit a Prendre Cs Ju

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

LEGAL ANALYSIS ON PROFIT A PRENDRE

SUBJECT: JURISPRUDENCE -II

NAME OF THE FACULTY: MR. M. SREENU

NAME OF THE CANDIDATE: VISHNUMOLAKALA CHANDRA SEKHAR

ROLL NO. & SEMESTER: 20 2 ! & " TH SEMESTER


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A#$% '()*+ )%

I would like to express my special thanks to our Vice Chancellor Prof. R.G.B. Bhagwath

Kumar, Registrar Prof. A. Sudhakar and especially gratitude my Professor Mr. M. Sreenu

who gave me the opportunity to do this wonderful project on the topic ‘Legal nalysis on

Profit a Prendre! which also helped me in doing a lot of research" I am really thankful to them

all"

#econdly I would also like to thank my parents and friends who helped me a lot in

finishing this project"

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Abstract

Profit a prendre it was derived from $rench Language it says %Right of &aking'" &he (ssay

deals with the concept of Profit a Prendre and its implications in the legal field" % Profit a

prendre is an interest in land') this creates an interest in land and gives the right to take

something off someone else!s land including wildlife) minerals or tim*er" &he nexus *etween

the profit a prendre and license has *een discussed in the essay" section + of the &ransfer of

Property ct) ,--. and su*section ./ of the 0eneral Clauses ct ,-12) which applies to the

immova*le property as included %land') %*enefit arising out of land' and the things attached

to the earth) which means rooted in the earth or em*edden in the earth) or permanently

fastened to anything so em*edded for its *eneficial enjoyments'" &he grant of the Profit a

prendre is immova*le property and has to *e *y means of a registered instrument" 3hat

comes under Immova*le property has *een sorted out in the paper" Case laws are put to

support the concept and to analyse the Profit a prendre" Profit a prendre is one of the essential

concept in non4possessory rights related to transfer of property"

Contents

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Scope of the Project

&he scope of the project extends to the meaning of profit a prendre and the allied aspects"&he difference and relation *etween profit a prendre and part performance"

!terature Re"!ew

The primary Literature that has been reviewed while going through this research

topic is books, journals and web-sources.

Research methodo#og$&he method of research which is followed for the project is a non4empirical study" &he

research includes gathering the data from the existing information like referring the *ooks

related to the topic) articles) journals and the documents relating to the topic availa*le online"

%$pothes!s

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the soil thereof" ‘5enefit to arise out of land! @ *enefit to arise out of land is an interest in

land) therefore immova*le property" 7ot only the land) *ut *enefit arising out of it is also

regarded as immova*le property *ecause *enefits arising out of land is an incident of it and

cannot *e severed from it" &he grant of the profit a prendre is immova*le property and has to

*e *y means of a registered instrument"

'hat comes under &mmo"ab#e Propert$(

• right to enter on land) for purpose of cutting and carrying way tim*er standing on it)

is a *enefit that arises out of land) and under section +>.E? of the general clauses act) it

would *e regarded as immova*le property) *ecausea" It is a *enefit that arises out of the land) and

*" &rees are attached to the earth

In #anta*hai vs" #tate of 5om*ay . case it was challenged that whether standing tim*er comes

under immova*le property or not" It was held *y Vivian that %7ow it will *e o*served that

trees are regarded as immova*le property *ecause they are attached to or rooted in the earth"

&ransfer of property does not define immova*le property *eyond saying that it does not

include standing tim*er) growing crops or grass!) trees attached to it are immova*le exceptstanding tim*er) even under the transfer of property act *ecause of section +>.E? of the

0eneral Clauses ct" In the a*sence of special definition) the general definition must prevail"

&herefore trees are immova*le property >except standing tim*er? are immova*le property' + it

is proved in the #anta*hai case that trees are considered as immova*le property"

• contract relating to *am*oo constitutes a grant of a profits a prendre and is a

*enefit to arise out of land and as such creates an interest in immova*le property" It

was held in state of 8rissa v" &itaghar paper mills co" ltd• right which takes the form of a grant of *enefits arising out of land) as distinguished

from a *are right to take the leaves) that is a right not only to take the leaves of trees

*ut also a right of ingress an degrees from the land and of further *enefits including

the right to occupy the land) to erect *uildings and to take other forest produce) not

necessarily standing tim*er) growing crop or grass"

2 Santa $ai v. State of Bo% ay, &'R 1(5" S) 532*53#+

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• In 5hola nath nundi vs" ;idnapore amindari F co ltd the Calcutta high court held that)

‘a profit a prendre! is an incorporeal right clothing the possessor of it with an interest

in the land" It is a right to enter on the land of another and take there form a profit of

the soil" It is so called *ecause the claimant is entitled to take the profit for himself"• n allowance charged on land• right to collect dues at a fair held on a plot of land) since it is *enefit arising out of

land• grant of an annual allowance to *e levied from certain land• life interest in the income of immova*le property• right to possession and management of a saranjam"• &he right to receive future rent) *eing a *enefit to arise out of land) assignment of

future rents and profits can only *e made *y registered instruments"•

right of way and rights of easementA• $erry rightsA• &he transfer of a right to catch and carry away fish in specific portions of a pond or

lake over a future period) *eing a *enefit that arises out of land"• Gulkar rights *eing incorporeal rights and *enefits arising out of land• lease) *eing a transfer of immova*le propertyA the *enefit to arise) in such a case) is

an interest in immova*le property and) therefore) immova*le property) a lease)

without dou*t *e regarded as immova*le property"• &he right to collect rent from the tenants) *eing a right to the *enefits arising out of

land and a lease of immova*le property"


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Profit a prendre is a similar to a license since *oth permit use of another!s land for specified

purpose" 5ut the profit a prendre is not revoca*le like a license which is generally termina*le

at any time upon reasona*le notice" ;ore is reHuired" &he nature of Profit a Prendre is to

remove something from the land" &he major difference *etween license and profit a prendre

is license to use and right to take is also) a license will not *e enforcea*le against third

parties"

Prof!t a prendre and part performance

&he part performance in profit a prendre is dealt in the case ;ason v" Clarke >,1//?) ; paid

, pounds for the right to kill and take ra**its from a certain estate" 8wners sold the estate)

and the new owner) >9? refused to from hunting" Court held that an eHuita*le interest of profit

a prendre was created on the *asis of part performance"

Case ana#$s!s on prof!t a prendre

In 5ihar eastern 0angetic $isherman Co4operative #ociety Ltd vs" #iphani #inghE

) it waso*served4

&hat apart) there is an additional reason for holding that the settlement of Galkar with

respondent 7o", was not valid and enforcea*le" &he right to catch and carry away the fish

*eing a ‘profit a prendre! i"e" a profit or *enefit arising out of land) it has to *e regarded as

immova*le property within the meaning of the transfer of property act read in the light of

section +>.E? of the 0eneral Clauses ct" If a ‘profit a prendre! is tangi*le immova*le

property) its sale has to *e means of a registered instrument in case its value exceeds Rs", D4 *ecause of section /F f the transfer of property ct" If it is intangi*le) its sale is reHuired to *e

effected *y a registered instrument whatever its value" &herefore in either of the two

situation) the grant of the profit a prendre has to *e *y means of registered instrument"

ccordingly the transaction of sale of the right to catch and carry away the fish is not effected

*y means of a registered instrument would pass no title or interest" (ven if the settlement of

Galkar with respondent 7o", is regarded as a lease as descri*ed *y him in nnexure4. in the

# &'R 1( 2 ad. 12(.

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writ petition) it would not make any difference *ecause a lease of fishery which is immova*le

property as defined *y section . >E? of the registration act if it is for any term exceeding one

year or reserves a yearly rent has also to *e registered as reHuired *y section ,2>,? >d? of the

Indian Registration ct) ,1 - and section , 2 of the &ransfer of Property ct" s in the

instant case) the transfer of the ‘profit a prendre! in favour of respondent 7o", was admittedly

for two years reserving a yearly rent and was not evidenced *y a registered instrument) he

had no right) title or interest which could *een forced *y him" ;anifestly therefore) the writ

petition was misconceived and ought to have *een dismissed"

Prof!t a Prendre !n Gross)Abandonment *

&he profit a prendre in gross a*andonment has *een clearly came into key role in ;athews

#late Co" v" dvance Industrial #upply Co - " In ,-2, ( conveyed part of his farm to the

plaintiffJs predecessors in title) reserving to himself) his heirs and assigns) all the waste or

ru**ish stones which might *e o*tained from working Huarries on the land conveyed Kand the

right to remove the same at pleasure"K &he remainder of the farm came *y mesne

conveyances to the defendant) the intermediate owners having occasionally exercised the

privilege given *y the reservation" ( died in ,--2 and in ,1,2 his heirs and next of kinconveyed all their interest under the reservation to < who conveyed to the defendant" &here

was no evidence of user *y ( or his heirs or next of kin" &he plaintiff sought to enjoin the

defendant from entering to remove the stones" two judges dissenting? that the interest

reserved constituted a profit a prendre) that it was in gross and not appurtenant to the land

retained) and hence it had *een a*andoned"

Prof!t a prendre R!ght to Se#f %e#p +

In the case


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restrained"


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$act summaryB the $air*rothers >P? claimed that language in a deed pursuant to which they

conveyed to the dams >9? %the hunting and fishing rights on the other lands of the

$air*rother farm' created purely personal) non4exclusive rights"

Concise rule of lawB deed tht grants %the hunting and fishing rights on other lands' createsan exclusive) assigna*le profit a prendre in those other lands"

$actsB the $air*rothers >P? conveyed to the dams >9? a parcel of land of approximately three

acres" &he warranty deed contained the following language" %&here is also conveyed here

with hunting and fishing rights on the other lands of the $air*rother farm)' this raised issues

as to whether the deed conveyed exclusive hunting and fishing rightsA the scope of those

rightsA whether those rights were personal only or were aliena*le and assigna*leA and if so)

what parts of the entire $air*rother >P? farm was su*ject to them"

IssueB 9oes a deed that grants %the hunting and fishing rights on other lands' create an

exclusive) assigna*le profit a prendre in those other lands


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Conc#us!on

Profits a prendre is one of the most important concepts relating to transfer of property" 5y

including *enefits arising out of the land within transfer of property it greatly widened the

scope of transfer" &he difference *etween licence and profit a prendre plays a key role in

understanding the concept" Profit a prendre is one of the essential concept in non4possessory

rights related to transfer of property" Gudicial interpretation of this concept is very much

essential for the proper implementation of the laws"

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B!b#!ograph$

5ooksB

#anjiv row) &ransfer of property act) Volume ,) eight edition) :niversal law

pu*lications". ,+"

an analysis of profit a prendre cs ju

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