Law > Civil Laws > Transfer of Property Act > Immovable Property
It is a surprising fact that the Transfer of Property Act does not contain a comprehensive definition of immovable property. Section 3, Para 2 merely says: “Immovable property does not include standing timber, growing crops or grass”. This is a negative definition and is not satisfactory. We can find a workable definition of immovable property in Section 3 (26) of General Clauses Act, 1897, which reads as follows; “Immovable property include land, benefits to arise out of land and things attached to the earth”.
According to the Indian Registration Act, 1908, “Immovable property shall include land, benefit to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth”.
The Transfer of Property Act has supplied us in Para 6 of section 3 a definition of the expression “attached to the earth”. This expression means:
(a) “Rooted to the earth, as in the case of trees and shrubs;
(b) Embedded in the earth as in the case of walls of buildings, or
(c) Attached to what is so imbedded for the beneficial enjoyment of that to which it is attached.”
Things rooted to the earth are immovable property. By combing above definitions, we may say that the term includes land, benefits to arise out of lands, and things attached to the earth, except standing timber, growing crops and grass.
Meaning of Land:
Land means a determinate portion of the earth’s surface. All the objects which are on or under the surface in its natural State are included in the term land. Also, all objects placed by the human agency on or under the surface with the intention of permanent annexation to the earth are immovable property, e.g., Building, wall, fences.
Meaning of Benefits to Arise Out of Land:
The phrase ‘benefits to arise out of land’ means profits derived from the land without having any substantial control over the land. Benefit arising out of land is also known as ‘Profit a Prendre’. A right to collect rent and profits of immovable property, right to collect dues from a fair or heat or market on land are immovable property.
In Anand Behera v. State of Orissa, AIR 1956 SC 17, case, the petitioner had obtained a license to catch and appropriate all fish in specific sections of the Chilka lake from its proprietor (Raja of Parikud). The Orissa Estates Abolition Act, 1951 was passed and the ownership of the estate vested in the State of Orissa. The State of Orissa refused to recognize the license of the petitioner. Petitioner contended that their fundamental rights under Art 19(1)(f) and Art 31(1) are violated and also contended that ‘catching and appropriating fish’ is a transaction relating to sale of future goods (which is the fish) and hence the Act which is applicable only to immovable property would not be applicable to him. The court held that the lake is an immovable property and therefore the petitioner’s right to enter in that estate (which he did not own) and carry away fish from the lake is equivalent to a ‘Profit a Prendre’ in England and in India it is regarded as a benefit that arises out of the land and as such is immovable property.
In Shantabai v. State of Bombay, AIR 1958 SC 532 case, Shantabai’s husband had granted her the right to take and appropriate all kinds of wood from certain forests in his Zamindari through an unregistered document. With the passing of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, all proprietary rights in land vested in the State of Madhya Pradesh and the petitioner was prohibited to cut any wood. She applied to the Deputy Commissioner and obtained from him an order under S. 6(2) of the Act permitting her to work the forest and started cutting the trees. The Divisional Forest Officer took action against her and passed an order directing that her name might be cancelled and the cut materials forfeited. She moved the State Government against this order but to no effect. Thereafter she applied to the Supreme Court under Art. 32 of the Constitution and contended that the order of Forest Officer infringed her fundamental rights under Arts. 19(1)(f) and 19(1)(g). The Court talked about the phrase ‘benefit arising out of land’ and held that right to enter upon land and cut trees is a benefit arising out of the land. This judgment was based on Anand Behera case.
In State of Orissa v. Titagarh Paper Mills Company Limited, AIR 1985 SC 1293 case, Section 3B of Orissa Sales Tax Act, 1917 empowered the State Government to declare goods or class of goods liable to be taxed. The government issued a notification through which standing trees and bamboos agreed to be severed were liable to be taxed on the turnover of purchase. Writ petitions were filed by a group of those people who had entered into bamboo contracts and timber contracts with the State. They contended before the Court that the subject matter of the bamboo contract was not a sale or purchase of goods but was a lease of immovable property or was a creation of an interest in immovable property by way of grant of ‘Profit a Prendre’ and due to this the royalty payable under the bamboo contracts could not be made exigible to either sales tax or purchase tax. The Court held that “felling, cutting, obtaining and removing bamboos from forest areas for the manufacture of paper” is a benefit to arise out of the land and it would thus be an interest in immovable property.
In Mosammat Bibi Sayeeda v. State of Bihar, (1996) 9 SCC 516 case, certain municipal plots were transferred to S. Sayed Haider Imam father of Sayed Abid Imam by his predecessor Zamindar. He constructed 132 shops and let them out to diverse tenants on monthly rentals. The Collection of shops was known as Patna Market in Patna. The state wanted to acquire these shops under the Bihar Land Reforms Act. The question raised in this case was about the meaning of the word ‘Bazar’ within Section 4(a) of the Bihar Land Reforms Act 30 of 1950. The appellants claimed in the writ petition that the shops are ‘homestead’ within the meaning of Section 2 (j) of the Bihar Land Reforms Act and these shops are not bazars. Hence they do not vest in the State and, therefore, they remain to be the property of the appellants. The High Court held that the constitutionally of the provisions of the Act has not been challenged and also held that ‘hats’ or ‘bazars’ are vested in the State. A congregation of buyers and sellers is enough to constitute a bazaar and the right to hold a bazar is an interest in the land. The Supreme Court affirming the decision of the High Court held that right to hold a bazaar is a benefit arising out of the immovable property.
Meaning of Things Attached to Earth:
Section 3 para 6 of transfer of property defines the expression ‘attached to earth’ as including
- things rooted in the earth,
- things embedded in the earth,
- things attached to what is so embedded, and
- chattel attached to earth or building.
Things rooted to the earth are immovable property. Things rooted in earth include trees and shrubs, except standing timber, growing crops and grasses. The reason for the exclusion of standing timber, growing crops and grasses from the category of immovable property is that they are useful as timber, corn, and fodder only after their severance from the land. Whether tress regarded as movable or immovable depends upon the intention of the user. If the intention is to continue to have the benefit of further sustenance or nutriment by the soil (land), e.g., enjoining their fruits, then such tree is immovable property. But if the intention is to cut them down sooner or later for the purpose of utilizing the wood for building or other industrial purposes, they would be timber and of accordingly be regarded as movable property.
In Jagdish v. Mangal Pandey AIR 1986 All. 18, case the court held that nature and intention are to be seen to determine whether it is movable or immovable. In case of trees apart from the size of the trees, the relevant consideration would be the nature of the tree and the intention to cut the tree or to let it remain attached to the earth and in the former case, it will be deemed as standing timber while in the latter it remains as immovable property. Also refer to Shantabai v. State of Bombay, AIR 1958 SC 532 case discussed above.
Meaning of Things Embedded in Earth:
It includes such things as a house, buildings, wells, etc., however, certain things like an anchor embedded in the land to hold a ship or a shovel is not an immovable property because that is inserted into the mud for a short period of time.
To determine whether such things are movable or immovable property, depends upon circumstances of each case and there are two main conditions to indicate intention:
Degree of annexation:
It means that when the removal of any property annexed or embedded will not cause any harm to the land. If it does cause, then it will come under the ambit of immovable but if it does not and can easily be detached, it will come under a movable property. Examples:
- An anchor imbedded in the land to hold a ship or a shovel can easily be detached without harming the land. Hence it is a movable property.
- Seats cemented in the garden are immovable properties because during their removal land would be harmed.
Object of annexation
If the object of annexing or embedding the property is for usage for a long period of time. Example:
- If a tenant for life attaches bolts to tighten any object in the home, it will come under immovable because the intention of it is to use it for a long period of time.
Meaning of Things Attached to What is so Embedded:
In Indian law movable property sometimes assumes for legal purposes the character of immovable property. The things embedded in the earth or attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached are regarded as immovable property. When a property is treated as fixtures any dealing with the property to be valid should conform to the legal requirements laid down for such dealings in relation to immovable property. Thus a house becomes part of the land on which it stands and anything affixed to the building is by common law treated as an addition to the property of the owner. e.g., door and windows of a house are immovable property as they are permanently fastened to the house standing on the land and they cannot be removed without damaging the house. While electric fans or window blinds are movable properties because they can be removed very easily without damaging the house.
Suppose A sells his house. The fixtures appertaining to the house pass along with the house and need not be separately mentioned in the sale deed. They are treated as part of the immovable property sold. So A cannot remove the doors and windows after he has sold the house. He may, however, remove the showcases; boxes and bookracks for these are not fixtures and are only movable property.
Meaning of Chattel attached to earth or building:
a chattel means a movable property is attached to earth or building, which has become immovable property. The degree, manner, extent, and strength of attachment are the main features to be regarded in determining whether the chattel is movable or immovable property.
In Duncun Industries v. State of U.P. AIR 1998 All 72 case, where the company had to pay stamp duty on their property. They gave stamp duty on the value of the land without including the value of the plant and machinery on the property to produce goods. Court held that they were liable to pay stamp duty on the value of their land including that on the plant and machinery as it would come under the ambit of things attached to what is so embedded in the earth. The Court also held that any property of which, the intention is to maintain it for a long period of time and in this case, it was being used by the industry to produce different goods, this will come under an immovable property.
From the above explanation, we can understand the reasons of exclusion of standing timber, growing crops and grasses from immovable property, because they can be severed from the earth without harming the earth.
What is Standing Timber?
The standing timber refers to trees which are fit for use for building or repairing houses, bridges, ships, etc. When timber is sold, it is to be cut and taken away. It will no more have any connection with the land and is therefore not immovable property.
If A gives a right to B to remove all trees which may grow in A’s forest for the next 10 years, this is not a transfer of movable property. It is a transfer of the interest of land.
In Sukry Kurdepa v. Goondakull, (1872) 6 Mad. H.C 71 case, the court has explained that movability may be defined to be a capacity in a thing of suffering alteration. On the other hand, if a thing cannot change its place without injury to the quality it is immovable.
In Fatimabibi v. Arrfana Begum, AIR 1980 All 394 case, the court held that the word standing timber includes trees like Babool, Shisham, Nimb, Papal Banyan, Teak, Bamboo, etc. and they are movable properties. The trees like Mango, Mahua, Jackfruit, Jamun, etc., are planted for their fruits and not with the intention of their severance from the earth is not standing timber, and they are immovable properties.
In T.A. Sankunni v. B.J. Philips, AIR 1972 Mad 272 case, the court held that if the intention of planting tree is to cut them down sooner or later for the purpose of utilizing them as timber, and not to use them for the purpose of enjoying their fruits, they are regarded as movable property.
What are Growing crops and Grasses?
Growing crops includes creepers like a beetle leaf wine, grapes, etc., millets (Wheat, Sugarcane, etc.), vegetables like bottle gourd, pumpkin, etc. These crops don’t have any own independent existence beyond their final produce.
Grasses can only be used as fodder, and no other use is possible. Therefore it is movable. But a contract to cut grass will be an interest in chattel and it is a benefit arising out of the land, so is immovable property.
Minerals:
Upon transfer of immovable property, things not only rooted in the earth but also anything found deep down below the property goes along with the transfer. All minerals below the land sole are immovable property.
Judicially Recognised as Immovable Properties:
- Right to collect the rent of an immovable property
- Right to collect dues from a fair on a piece of land.
- A right of a ferry.
- A right of way.
- A right of fishery
- A debt secured by mortgage of immovable property
- Hereditary offices for a priest of a temple.
- Right to receive future rents and profit of the land
- The equity of redemption
- Reversion in property leased.
- The interest of a mortgage in immovable property
- The right to collect lac from trees.
- A factory
Movable Property
Transfer of property does not define a movable property. In General Clauses Act, it is defined as “Property of every description except immovable property”.
Judicially Recognised as Non-immovable Properties:
- A right of warship
- The right of purchase of property to have it registered in his name
- Royalty
- A piece of machinery which is permanently not attached to the earth and can be shifted from one place to another
- A decree of sale of a mortgaged property
- A right to recover maintenance allowance even if such allowance is not charged on immovable property.
- Government promissory notes
- Standing timber, growing crops, and grass
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