IMMOVABLE PROPERTY

Transfer of Property Act, 1882

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

Advocate

IMMOVABLE PROPERTY (Interpretation Clause: Section-3)-

Tanmoy Mukherjee

Advocate

Property may be divided into two classes, namely:

(i) Movable Property; and

(ii) Immovable Property.

1. Movable Property-

 Movable property is one, which can be transferred from one place to another place with human efforts.

2. Immovable Property-

 Immovable property is one, which cannot be transferred from one place to another without causing damage to such property.

Transfer of Property Act deals with the transfer of both movable and immovable property. Most of the provisions relate to Immovable Property. Therefore, it is necessary to discuss in detail what is immovable property.

Definition of Immovable Property (Section 3)-

Section 3, Para 2 of the Act defines Immovable Property, as 'Immovable Property' does not include standing timber, growing crops or grass.

The expression 'standing timber' means trees fit for use for building or repairing houses. Growing crops include all vegetable growths, which have no existence apart from their produce such as pan leaves, sugarcane etc. Similarly, grass can only be used as fodder and is a movable property.

The above definition as negatively defined under the T.P.Act, excluding the above three items is not comprehensive. It merely excludes standing timber, growing crops and grass. It only says that three things, namely, standing timber, growing crops and grass are not immovable.

General Clauses Act 1897-

Section 3k (26) of the General Clauses Act, 1897 defines 'Immovable Property' as follows-

"Immovable Property shall include land, benefits arising out of land and things attached to the earth, or permanently fastened to anything attached to the earth." This definition has reference only to physical objects and does not furnish an exhaustive test of what is, and what is not, immovable property. The term immovable property includes three things namely-

(i) Land.

(ii) Benefits arising out of land; and

(iii) Things attached to earth.

i. Land-

 This word does not include only the upper surface of the earth but is extensive enough to cover things below it, for example, minerals. All these are immovable property. Any right in these or in respect of these or any other interest in it are all immovable property. Besides well, tube-well, rivers, ponds, tanks, stream, canal, dug on surface whether natural or artificial and all interests in these would fall within the meaning of the term 'land'.

ii. Benefits arising out of land-

 Benefits arising out of land like the right to receive future rent is an Immovable Property. The examples of benefits are rent from house, shops and Jagir, Revenue from agriculture, right to collect lac, leaves or other things from forest trees, etc. Similarly right to collect Tahbazari from rural market, Baithaki right to collect tax on ghats and bridges are all examples of benefits arising out of land.

iii. Things attached to earth-

Following items fall within the meaning of the things attached to earth.

(a) Things rooted in earth; E.g.: trees, shrubs excluding standing timber, growing crops, grass etc.

(b) Things imbedded in the earth; E.g.: wall and buildings, minerals etc.

 (c) Things fastened for the permanent beneficial enjoyment of anything embedded to earth. E.g.: windows, doors, ceiling fan etc.

-Ceiling fan may be regarded as an immovable property, if it is fixed for permanent beneficial enjoyment. If it is meant for temporary purpose it is not an immovable property.

The above definition also is not comprehensive but it is an improvement on the first one.

Indian Registration Act, 1908-

 Section 2(6) of the Act, defines 'Immovable Property' as "immovable Property includes land, buildings, hereditary allowances, rights of ways, lights, ferries, fisheries or any other benefits arising out of land and things attached to the earth but not standing timber, growing crops or grass".

This definition is a better one since it has covered many items. This definition also excludes standing timber, growing crops and grass.

If the above three definitions are viewed together, it is clear that they do not tell us what immovable property is. They only tell us what is either included or not included therein. In all the above three definitions, the last three things viz. standing timber, growing crops and grass are excluded from the definition since they are several from the land.

Correct idea of immovable property-

The negative definition of the T.P Act and the positive definition of the General Clauses Act as stated above are if taken together, we succeed in giving correct idea of immovable property as follows-

Immovable property" means, 'land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth'.

It is clear from the above that the term 'immovable property' includes three things namely land, benefits, to arise out of land and things attached to earth. It excludes three things namely, standing timber, growing crops and grass.

The expression "Attached to earth is defined under Section 3, Para 6 of the T.P.Act as follows:

"Attached to the earth" means-

(a) Rooted in the earth, as in the case of trees and shrubs;

(b) Embedded in the earth, as in the case of walls or buildings; or

(c) Attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached.

(a) Things rooted in the earth-

 According to the definition, trees and shrubs come within the meaning of the immovable property subject to exception as to standing timber.

(b) Things embedded in the earth-

 The word 'embedded' means "a thing whose foundation is laid well below the normal surface of the earth." E.g.: walls and buildings.

(c) Things fastened to things embedded for its permanent beneficial enjoyment-

 This category includes the cases of doors, windows, ceiling fans, etc. These are fastened to walls and ceilings, for the permanent beneficial enjoyment of the room or house. These are, therefore, things attached to earth and immovable property. But ornamental fittings, festivities, electrical appliances and other decorations though fastened to walls, doors, etc. are not so attached for the simple reason-

(i) That these are not permanent but only transitory and occasional;

(ii) And, are not in any sense beneficial to the wall or door.

Therefore, these are not immovable properties.

-Standing Timber, Growing Crops and Grass are Movable and Immovable: The Transfer of Property Act, Indian Registration Act and General Clauses Act have excluded standing timber, growing crops and grass from the definition of immovable property and regarded them as movable property. However, they are not regarded movable at all times. If the transaction is confined/limited only to the present, the property is said to be movable. If the transaction extends to future also, the property is regarded as immovable.

For instance- If there is a sale of trees to be cut and taken away, it relates to movable property. If the contract to cut the trees subsists for next 10 years, it relates to the transfer of immovable property. Relevant case law as stated below explains on this point.

Reference Cases-

Marshall vs. Green, 33 LT 400: 24 WR 75-

 In this case, the transaction was a sale of trees to be cut and taken away immediately. It was held that it was not the sale of any interest in land but merely of timber, which formed the subject matter of a transfer to be movable property. On the principle stated in this case it has been held that fruit-bearing trees are immovable property when the intention of the parties is that the fruit of the trees should be enjoyed and not that the trees should be cut down for use as timber. When what is sold is only the right to cut and enjoy the trees as timber, no interest in immovable property is transferred. If such a right extends over a period of years, it is an interest in immovable property.

Seeni Chettiar vs. Santhanathan, 330 Mad. 58 (FB) –

 In this case, it was held that right to cut trees (as and when they grow) for a period of four years, relates to immovable property and it requires registration.

Ansari vs. Board of Revenue, AIR 1960 AP 399 –

 In this case, the right to take away beedi leaves, bamboos and standing timber over a period of one year was held to be not immovable.

Ananda Behra vs. State of Orissa (1956) SCJ p-96 –

In this case, it was held that such a right to catch fish from lake/pond arising out of immovable property, i.e. lake/pond. Therefore, the sale 'right to catch fish' from lake/pond requires a registered instrument for its validity under Section 54 (Sales) of the Transfer of Property Act, 1882.

The right to catch and carry away fish is a Profit-a-Prendre, being benefited arising out of land is immovable property.

State of Orissa vs. Titaghur Paper Mills Company Limited (1985) SC 1293 –

In this case, the Government of Orissa and Titaghur Paper Mills Company Limited entered into a contract, for the supply of bamboo, and the company would pay money for the right to cut bamboo from the forest and for a number of years. The State Government thereafter levied sales tax on the company, treating the bamboo-contract as movable. The company resisted it.

Problem- 'A' orally grants 'B' for Rs.700/- the right to catch and carry away fish from his lake. Is the grant valid?

Answer- The right in question relates to movable property. The sale may be oral. The Supreme Court in Ananda Behra vs. State of Orissa (1956) SCJ p-96 held that such a right is a benefit arising out of immovable property namely, the lake. It comes within the meaning/purview of immovable property under the General Clauses Act, 1897. The sale requires registered instrument for its validity under Section 54 of the T.P.Act. Therefore, the oral grant is invalid and cannot pass away any title in favour of 'B'.

What are immovable property-

 Following are the judicially recognized immovable property-

(i) The equity of redemption.

(ii) Right to collect rents of immovable property.

(iii) A right of ferry.

(iv) A right of fishery.

(v) A debt secured by mortgage of immovable property.

(vi) A hereditary office under Hindu Law.

(vii) A right to receive future rents and profits of land.

(viii) A pension or other periodical allowances granted in permanence.

(ix) The right to collect lac from trees.

(x) Reversion in property leased.

(xi) A right to tap coconut trees and obtain toddy.

(xii) A right to sever and collect tendu leaves.

(xiii) A right to graze cattle or mow grass.

(xiv) The interest of a mortgagee in immovable property.

(xv) A vested remainder.

(xvi) Coal land.

(xvii) A pumping installation when fastened to the earth in a permanent manner.

(xviii) A priest's right to recover dues at a funeral.

(xix) A right to assessment.

(xx) A tenancy right.

What are not immovable property-

(i) Standing timber, growing crops and grass.

(ii) A royalty.

(iii) A right to recover maintenance allowance.

(iv) Right to worship.

(v) Right to collect offerings from Yajman.

(vi) Amount payable by a Yaman to a Panda.

(vii) A right to obtain specific performance of an agreement to sell.

(viii) A copyright.

(ix) Brit Jajani books.

(x) Interest of a partner in the partnership.

Distinction between movable property and immovable property-

Following are the notable points of distinction between movable property and immovable property-

Movable Property	Immovable Property
1. The movable property can easily be shifted/transported from one place to another without any loss or damage. E.g.: goods.	1. The immovable property cannot be shifted/transported from one place to another without any loss or damage. E.g.: land, buildings etc.
2. Registration of the transfer of movable property under the Indian Registration Act, 1908 is not compulsory, but optional.	2. Registration of Transfer of immovable property is compulsory under the Indian Registration Act, 1908 if the value of the property is Rs.100/- or above.
3. Movable property is subject to General Sales Tax of the State concerned or The Central Sales Tax Act, 1956.	3. Immovable property is not subject to Sales Tax, but is liable for stamp duty under Indian Stamps Act, 1899 and registration fee under the Indian Registration Act, 1908.