IMMOVABLE PROPERTY (Section- 3)

IMMOVABLE PROPERTY

Immovable property has been defined in two Acts-

1. The Transfer of Property Act, 1882 and
2. The General Clause Act, 1897

According to The Transfer of Property Act, 1882 a very non exhaustive and a negative perspective has been given to the term “Immovable Property”-

Under section 3- Immovable property does not include;

• standing timber,
• growing crops or
• grass.

According to The General Clause Act, 1897 a far more exhaustive and with a positive perspective, term “immovable property” has been presented-

Under section 3- include;

• land,
• benefits to arise out of land,
• things attached to the earth or
• permanently fastened to anything attached to the earth.

The conclusive meaning of the term could be-

‘Immovable property shall include land, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth, except standing timber, growing crops or grass.’

GOING BY WORDS, THERE IS WIDE RANGING MEANING TO THE DEFINITION-

LAND:

When considered in legal aspect, land includes the following elements-

• A determined portion of the earth’s surface (plot of land or plain land).
• Possibly the column of space above the land (land includes space as well).
• Ground beneath the surface (underground).
• All objects which are on or under the surface in its natural state- mineral, lakes, ponds, rivers (things beneath land).
• All objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of land, and lost their identity as separate movable- building, wall, fences (things above surface or things on surface).

BENEFITS TO ARISE OUT OF LAND:

Apart from physical point of view, immovable property may include benefit arising out of it and every interest in such property like-

• Hereditary allowances,
• Rights of way, lights, ferries and fisheries,
• Debt secured by a mortgage of immovable property is an interest inland,
• Right to collect rent.

THINGS ATTACHED TO EARTH:

Expression- things attached to the earth includes-

• Things rooted in the earth,
• Things imbedded in the earth,
• Things attached to what is so imbedded,
• Chattel (tangible goods) attached to earth or building.

Things rooted in the earth:

It includes like trees and shrubs, but when such trees constitute standing timber they are not immovable property.

Shanta Bai V State of Bombay AIR 1958 SC 532

In this case Supreme Court held that, intention of to owner decide whether a standing timber a timber or crop.

Example- If the intention is to use them for enjoying their fruit, they will be regarded as immovable property, but if the intention is to cut them down sooner or later for the purpose of utilizing the wood they would they would be timber and regarded as movable property. A fruit bearing tree is immovable property, if the owner treat it as a timber.

Similarly, growing crop, and grass are regarded as movable property.

Things embedded in the earth:

When the article in question is no further attached to the land by its own weight, it is generally to be considered as movable property. Example- things embedded includes such as houses and building, not anchor embedded in the land to hold a ship.

But when in such a case if the intention is to make the articles as part of the land. The rule is-

‘If the article stands on the earth stands on the earth up to its own weight- it will not be part of the land.

But if it is caused to go deeper in the earth by external agency, then it is part of a land.’

 Things attached to what is so embedded:

The intent here must be the permanent enjoyment, if not it becomes the movable property. For example in a house it –

• Includes- door, window and
• Excludes- fans, blinds

Chattel attached to earth or buildings:

If chattel i.e., movable property is attached to earth or building, it is immovable property.

Sometimes, a property is a movable property and for its beneficial use of enjoyment it is necessary to imbed it or fix it on earth, through permanently, that is, when it is in use should not be regarded as immovable property for that reason. For example- sugar cane machine or oil engines.

Perumal Naicker V Ramaswami Kone

It was held, oil engine attached to the earth and the attachment to last only so long as the engine is used. When it is not in use, it can be detached and shifted to some other place. The attachment in such case claims it to be immovable property.

Narayan sa V Balagure Swami AIR1924 Madras 187

Vassal used for distillation of liquor is not immovable property.

CONCLUSION:

What to recognize as immovable or movable property?

Immovable property-

• Right to collect rent of immovable property,
• Right to collect dues from a fair on a piece of land,
• Right of ferry,
• Right to way,
• Right of fishery,
• Debt secured by mortgage and interest of mortgage of immovable property,
• Hereditary allowances,
• Right to receive future rents and profits of land,
• Equity of redemption,
• Right to collect lac from trees,
• A factory.

Movable property-

• Right to worship,
• Royalty,
• Decree for sale of immovable property,
• Decree for arrears of rent,
• Right to recover maintenance allowance,
• Machinery which is not permanently attached to the earth- government promissory notes, standing timber, growing crops and grass.