Section 3 Interpretation Clause Immovable Property
Immovable Property
Stating simply Immovable property means the property which can not be moved from one place to another. According to Section 3 of the Transfer of Property Act “immovable property” does not include standing timber, growing crops or grass. The definition of the term “immovable property” in this section is a negative definition. It is not a comprehensive, and exhaustive definition. It merely excludes standing timber, growing crops or grass.
The positive definition of immovable property has been given in section 3(26) of General Clauses Act, 1897. According to this section immovable property includes land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. The definition given under the General Clauses Act, 1897 applies to the Transfer of Property Act, 1882 also (Babulal v Bhawani, 1912).
Thus, the definition of immovable property given in Section 3 of The Transfer of Property Act, 1882 and under the General Clauses Act, 1897 both explain the definition of immovable property that immovable property includes the following elements:
- Land
- Benefits to arise out of land and
- Things attached to the earth:
(a) things embedded in the earth;
(b) things attached to what is so embedded in
the earth;
(c) things rooted to the earth except:-
(i) standing timber,
(ii) growing crops, or
(ii) growing grasses
Land.
Land means surface of the land, and what is below, upon and under the surface of the land. The soil, mud, water, pond and river are also the part and parcel of the land. Sub-soil of the land, minerals, coals and gold mines are immovable property. The space which are above the surface of the land is also immovable property because of the fact that space starts just above the surface of the land.
Benefits to arise out. of land-The benefits to arise out of land are immovable property. Any right exercise by a person on a piece of land and gets certain profit that is his intangible-immovable property. The right to way on a land or right to use a land under lease or tenancy is Immovable property. The right of a tenant to live in the house of land-lord and right to catch the fish from the pond or river are also an immovable property. The rights of ferry on river or lake waters by boats or steamers are immovable property as water of river or lakes are benefits to arise out of land and thus immovable property. Likewise right to extract coal or gold from the mines are immovable property.
Profit à prendre
Profit à prendre is a legal right that allows an individual to enter another person’s land and take some part of the land’s natural produce or resources. This could include things like minerals, timber, or even fish. Essentially, it is a right to extract and remove something from the land.
For example, if someone has a profit à prendre to fish in a lake on someone else’s property, they have the right to enter the land, fish, and take the fish away. This right can be granted through an agreement or can be acquired by prescription (long-term use).
A right to enter upon the land of another and carry a part of the produce is an instance of profits a pendre ie. benefit arising out of land, and therefore a grant in immovable property.(SHANTA BAI V STATE OF BOMBAY 1958 SC)
Ananda Behera v State of Orissa 1956 SC
Case Summary:
Context: Petitioners obtained oral licenses from the Raja of Parikud to catch and appropriate fish from Chilka Lake, paying significant sums and receiving receipts. This occurred before the Orissa Estates Abolition Act of 1951, which transferred ownership of the estate to the State of Orissa.
Issue: The licenses were for periods after the estate vested in the state. The State of Orissa refused to recognize these licenses and sought to reclaim the fishery rights.
Petitioners’ Argument: They claimed their fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution were infringed, arguing the transactions were sales of future goods (fish), not immovable property.
Court’s Decision: The court held that the right acquired was a license to enter the land and catch fish (profit à prendre), which is considered immovable property under the Transfer of Property Act and the General Clauses Act. Since the sale of this right was valued over 100 rupees and was not in writing or registered, it violated Section 54 of the Transfer of Property Act, meaning no title or interest passed to the petitioners.
Fundamental Rights: The court found no fundamental rights were infringed as the state did not confiscate or take possession of the contract but merely refused to recognize it, which could lead to a contractual dispute but not a constitutional one.
3.Things attached to earth.
-According to Section 3 of the Transfer of Property Act, 1882 expression things attached to earth’ means
(i) rooted in the earth, as in the case of trees and shrubs,
(ii) embedded in the earth, as in the case of walls or buildings; or
(iii) attached to what is so embedded for the permanent beneficial enjoyment of to which it is attached.
- Things rooted to the earth-Rooted in earth
as in the case of trees and shrubs. The trees, plants shrubs and herbs are rooted in the earth firmly they are called immovable property. When they are cut down their position are changed and they come under the category of movable property. But according to Section 3 of the TPA as an exception to this general rule are standing timber, growing crops and grass are movable properties.
(ii) Things embedded in the earth– As in the
case of walls or buildings which are fixed in
the earth and become part of the land.
Electricity poles, houses, buildings, walls are immovable properties because they are things embedded in the earth. Where the things are just placed on the surface of the earth without any intention to make them the part of the land the things may not be immovable properties even if they appear to be fixed in the land. For example heavy things such as anchor which is fixed in the ground to hold the ship is not immovable property but the same anchor fixed firmly in the land to hold a suspension bridge would become an immovable property.
(iii) Things attached to what is so
embedded in the earth, -Things attached to what is so embedded for the permanent beneficial enjoyment of that which is embedded to the earth. The things so attached also become immovable property.
The doors and windows of a house are attached to its walls for permanent enjoyment of the house are also immovable property because of the fact they are attached to the things which are embedded in the earth such as the walls of the house. The doors and windows become the part of the walls of the house. The things attached without any intention to make them as the part of house or building or walls are not the immovable property as electrical bulbs or screens of doors or windows. Such things are not attached to walls for permanent beneficial enjoyment of the house but only for the use and enjoyment of itself.
Doctrine of fixtures
The doctrine of fixtures under the Transfer of Property Act (TPA) refers to the principle that any chattel (movable property) that is attached to the land becomes part of the immovable property. This doctrine is based on the maxim “quicquid plantatur solo, solo cedit”, which means “whatever is attached to the soil, becomes part of the soil” In property transactions, fixtures are generally included in the sale unless explicitly excluded in the agreement.
How to determine fixtures
If the question arises as to how to determine whether any movable property attached to the earth or permanently fastened to anything so attached, has become immovable property. If it has become, it is called a fixture.
For this there are two well established tests in English law which are also applied in India by the courts. The two tests are:
(1) Degree/ mode of annexation [rule in Holland v Hodgson (1872) LR7CP 328] – If the chattel (movable property) is resting on the land merely on its own weight, the presumption is that it is movable property, unless contrary is proved.
However, if it is fixed to the land even slightly by external agency, then it is deemed to be immovable property (i.e. part of the land), unless contrary is proved. For example, looms attached to the floor, beams of a mill or tied up seats of cinema hall are immovable, but not screws resting on brick-work and timber and tapestries.
(2) Object/ purpose of annexation – i.e., whether the purpose was to enjoy the chattel itself, or to permanently benefit other immovable property.
To become a fixture, a chattel should be attached to immovable property for the “permanent beneficial enjoyment” of that to which it is attached (In the case of an owner, this is presumed to be the purpose, but in the case of a tenant, this presumption is not there). The doctrine of fixture thus stands modified to this extent; in England the law as to fixture is based on the maxim quic quid Plantatur solo, solo vedit (whatever is planted on the soil belongs to the soil.) For example, fixtures like wiring, lighting system, ceiling fans, etc. are fixed not for the enjoyment of thing themselves a window by itself, but for the permanent beneficial enjoyment of that to which it is attached (i.e. room/house).
Thus, if A transfers a house to B, such fixtures also goes with the house. However, if a tenant fixes such fixtures (e.g. a fan), it will be treated as movable property as tenant is presumed not to have the intention to permanently benefit the immovable property. The object could only have been to enjoy the machinery (fan).
Everything therefore depends upon the circumstances of each case.
If the intention is to make the articles as part of the land, they do become part of the land. Thus, blocks of stones placed one on the top of another (without any mortar or cement) for the purpose of forming a dry stone wall would become part of the land. Similarly, anchor of a ship will not be part of land howsoever deeper it may have gone in the earth, but if it is used to support the strain of suspension bridge it will become part of the land.
(a) Standing timber-The trees rooted and standing on the earth living, growing and flourishing are immovable property. The Transfer of Property Act vide Section 3 provides an exception to this general rule that “Immovable property does not include the standing timber, growing crops or grass.”
Timber” means such a tree that chiefly meant to be used either for building purposes or for furniture or burning purposes. Their woods are used for buildings or furnitures or burning purposes.
Sometimes it is very difficult to distinguish about the objects of the trees. Bamboo trees have no utility except that they may be used in making houses or as poles, therefore, bamboo trees are movable property. (State of Orissa v. Titaghur Paper Mills Co. Ltd. AIR 1985 SC 1293.)
Babool, Sheesham, Neem and Teak trees are used for making houses doors, chairs and tables therefore, they are movable properties. (Baijnath v. Ramadhar, AIR 1963 All 214.)
Fruit bearing trees are immovable properties. (Moti Singh v. Deoki Singh, AIR 1936 Pat. 46.)
Palm or Date trees are also immovable property as they are planted exclusively for fruits or drawing toddy from them.
Thus, trees which bear fruits are not standing timber but are considered as immovable property.
There are, however, certain fruit-bearing trees, such as mango trees which are also used as a timber. Whether such trees are to be regarded as movable or immovable property depends upon the circumstances of the case. If the intention is to use them for the purpose of enjoying their fruits, 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 for building or other industrial purpose, they would be timber and would accordingly be regarded as movable property. (Shantabai v State of Bombay 1958 SC) Other fruits bearing trees of this category are Jamun, jackfruits etc.
(b) Growing Crops or growing grass. -Growing crops means the crops which are standing in the field such as wheat, barley or others. They are collection of plants rooted in the earth and such plants are bound to be cut when they ripe. Likewise the vegetable crops of potato are therefore movable properties, sugarcane crops and the crops of Indigo have been held movable property, crops include creepers thus crops of grapes and crops of betel leaf (pan), lauki, kaddu are also movable properties.
(c) Growing Grass. -Growing grass is also a movable property, as they are used as fodder for cattle. The growing grasses are bound to be cut down for fodder of cattle or be grazed by cattle. The right to cut the grass is exercised upon the earth and a beneficial interest arising out from the earth. Therefore, the right to cut the grass is an immovable right.
BAMADEV PANIGRAHI V MONORAMA RAJ 1974 A.P.
Facts: In this case, a ‘touring talkie’ installed on a mortgaged land. Cinema equipments like projector, diesel engine, etc. were installed on the land. The court held them to be movable property for they were meant to accelerate beneficial enjoyment not of the land but of the entire machinery installed for showing films, as the land was a tenanted land. Moreover, the equipment was not attached to the earth, but was on a temporary shed on land. The name ‘touring talkies’ shows that the aim and intention of installation … were only for a temporary period.
Held Cinema equipments like projector, diesel engine, etc. installed on the tenanted land temporarily, and, not only not attached to the earth, but also not permanently fastened to anything attached to the earth, are “movable’ properties.
The following have been held as immovable property:
(1) To dagirashak, a right to levying a cash composition in lieu of other clauses.
(2) A right to receive an annual payment running with the land attaching to the inamdar to whose hands the village passes.
(3) Varahashans being annual allowances charged on immovable property.
(4) Grant made by the Peshawa of an annual cash allowance and three Khandis of rice to be levied “samuruuni from certain mahals.
(5) The life-interest that a Hindu widow has in the income of her husband’s estate
(6) Hereditary offices regarded by Hindu law as immovable property.
(7) Office of hereditary priest to a temple and its emolument and Brij jajmani.
(8) Right to levy rate or cess on imports and exports.
(9) Right of way.
(10) Right to Jalkar.
(11) Easement.
(12) A right of ferry.
(13) A right to fishery.
(14) A right to open a water course.
(14A) Right to possession and management of saranjam.
(14B) Right to malikana,
(15) Right to hold land rent-free.
(16) Right to collect rents from occupancy tenants.
(17) Right to receive future rent, as being a
benefit to arise out of land.
(18) Right to collect dues from a fair.
(19) A bar and a lease of it.
(20) Claim to maintenance.
(21) Mortgage of the superstructure of house exclusive of the land but so long as it is standing on the land.
(22) Debt secured by a mortgage of immovable property for purposes of execution under the Code of Civil Procedure.
(23) Equity of redemption.
(24) Claim for unpaid purchase money.
(25) The interest of the mortgage in immovable property.
(26) A mortgage debt.
(27) The rights and interests of a grove-holder in a grove.
(28) The right of Maha Brahmin to receive dues from funeral.
(29) Rights to take forest produce including
tendu leaves, soil for bricks, to prune, coppice and bum trees to build.
(30) Where right is given with stipulation to purchase them after growth it is interest in immovable property.
(31) Lease of coal mine.
(32) A right to rear lac.
(33) Right to collect rent chargeable for use and occupation.
(34) Leases.
(35) A right to catch and carry away fish.
Why do we need to know whether the property is movable or immovable?
Properties can be classified as either movable or immovable, tangible or intangible. Understanding these terms helps clarify what constitutes movable or immovable properties since different rules and procedures apply to the transfer of movable and immovable properties. Further it also help us to understand what will be transferred along with an immovable property when it is conveyed.
Movable property under TPA
Movable property has not been defined in the Transfer of Property Act. Section 3 of the Transfer of Property Act excludes standing timber, growing crops and grass from immovable properties. Then it logically means that these are movable properties. Further, Section 3(36) of the General Clauses Act, 1897 defines movable property as ‘property of every description except immovable property. Section 2(g) of the Registration Act, 1908 defines movable property as ‘movable property includes standing timber, growing crops and grass’
Instances of moveable properties are:
(1) Standing timber, growing crops and grass.
(2) Things placed on the land or attached to it without any intention of making them a permanent part of the land, e.g. a machinery.
(3) Government Promissory Notes.
(4) Royalty or Copyright
(5) Right of worship.
(6) Decree for the arrears of rent.
(7) Decree for sale of any immovable property
on a mortgage Diwan Ali v. Basu Mal
(10) Right to get maintenance allowance.
[Altaf begum v. Brij Narayan)
Most important questions and answers
1. A has a right to collect lac from the trees and catch a fish from the Chillika lake. Is this immovable property?
Ans. Yes. This is an intangible immovable property because this is the benefits to arise out of land (profit a prendre). It can not be transferred without writing and registration.
- Discuss whether the following are movable or immovable property:-
(i) A Mango tree / An 80-year old teak tree/ Timber tree.
(ii) A right to cut teak/babul/mango trees (timber trees) for 2 years.
(iii) Sale of growing wheat crop which would be ready for harvest after 3 months.
(iv) A right to collect beedi (tendu) leaves from a forest for 10 years.
(v) A right to graze cattle over the land for one year / A right to cut grass from a football ground for 1 year.
(c) Distinguish between a standing timber and a timber tree. A is the owner of an estate that has only timber trees in various stages of growth. Under a contract he confers a right in favour of B to enter the forest and cut only standing timber. The right is spread over a period of 20 years.
Ans. (i) A Mango tree (a fruit-bearing tree) is considered as immovable property. But it may become standing timber (movable property) if the contract for its severance has already been entered into in respect of it.
A Teak tree which is 80-year old is a standing timber and thus movable property. A timber tree is an immovable property, unless it is ready to be cut (standing timber’).
(ii) A right to cut timber trees for a period of two years is immovable property as the trees thrive on the land and continue to be dependent on the land for the next two years.
Therefore, it is a transfer of an interest in land ie. immovable property.
(iii) Growing crops are considered as movable property.
(iv) A right to collect beedi (tendu) leaves from a forest for two years is immovable property because the beedi (tendu) leaves will continue to derive nutrition from the soil over a period of 10 years.
(v) A right to graze cattle over the land for 1 year or a right to cut grass from a football ground for 1 year is immovable property (benefits to arise out of land’). The grass will continue to derive nutrients from the soil for a period of one year.
(c) The right is a right in immovable property, as timber trees that are immature presently would become mature during the tenure period, and the grantee will be benefited from the further growth of the trees. Even if all timber trees in the forest are fully grown mature trees, the right is still in immovable property as the intention is not to cut them within a reasonable time period but is spread over a period of 20 years.
- A purchased from R by means of a registered sale deed a house for Rs. 5 lacs. Before purchase A has inspected the house and saw that the house has 6 ceiling fans and also a booster pump. When A took possession of the house he noticed that R had removed all the fans, and the pump. R informed A that he had sold only the house but not the fans and pump. A seeks your legal opinion to the matter. Advice A.
Ans. R is the owner of the house. He must’ve intended to install fans and pump for the permanent beneficial enjoyment of his house, thus these are immovable property. When he transferred the house to A, all immovable property annexed to the house got transferred along with.
Sec. 8 of the T.P. Act Operation of transfer reads: “Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee, all the interests which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, when the property is land,
the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and
where the property is a machinery attached to the earth, the movable parts thereof;
and where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith”.
In view of the Sec. 8, it was open to R to specifically exclude fans and pump, but he did not do so. Thus, A has the right over these items and can move the court for their recovery.
* List under sec. 8 Not exhaustive
- Discuss whether the following are movable or immovable property:–
(i) Transfer of a right to collect sand for 1 year from the sea-bed.
(ii) A right to work the mine and carry the product for 3 years.
(iii) Ceiling fan fixed by the tenant in the house.
(iv) Oil engine attached to land by mortgagee of land.
(v) An air-conditioner installed by nuts and bolts by the owner.
(vi) Hanging bridge on the river.
Ans. (i) As it is a ‘benefit to arise out of land’, it is immovable property. The sand which is to be collected over a year also includes future sand which will be deposited in the river bed by inundation process over a year..
(ii) As it is a ‘benefit to arise out of land’, it is immovable property.
(iii) As the tenant must’ve intended to enjoy the thing (fan) itself and not to permanently benefit the land (house), the fan fixed by him is movable property.
(iv) Similarly, the oil engine attached to land by mortgagee (temporary owner) is movable property.
(v) An air-conditioner installed by nuts and bolts by owner will be presumed to be for the permanent beneficial enjoyment of his immovable property (house), unless he expresses a contrary intention at the time when he transfers property (Sec. 8, T.P. Act).
(vi) If the objects are placed by human agency with the intention of permanent annexation (e.g. buildings, walls, fences, etc.), then such objects will be immovable property. A hanging bridge is fixed to the land. Most importantly, a hanging bridge cannot be enjoyed by itself; such bridge is for the “permanent beneficial enjoyment” of that to which it is attached (i.e. land covered by water-river). Thus, a hanging bridge is immovable property.