Definition of Immovable property under Transfer of property Act,1882
INTRODUCTION
The Transfer of Property Act was enacted in 1882. Prior to this, Common law principles have governed the dealings and transfers of property. This act deals with the transfer of property. But the scope of this act is narrow as it deals with only inter vivos transactions i.e. between living persons and hereby expressly excludes transfer by the way of will , succession and by the rule of court of law Sec 3 of the Act interpreted the term Immovable property, which we will discuss in detail in this article.
Meaning of property
The word “property” has been derived from the Latin word proprietary, which means a thing owned. The term property has nowhere defined nowhere in this Act. It can be used in most generic and wide sense. It includes rights and interests along with physical objects.
Meaning of Immovable property
Transfer of property Act do not define the term Immovable property. It mentioned that it does not include standing timber , growing grass and growing crops. It is not exhaustive definition.
In Suresh Chand v. Kundan¹, The court held that in absence of any special definition of Immovable property under the Act, the general definition under General clauses Act,1897 shall prevail.
1. As per section 3 (26) of General clauses Act,1897 –
“ Immovable property shall include land, benefits arising out of land, and things attached to the earth as permanent fastened to anything attached to the earth”.
2. As per section 2(6) of Registration Act,1908 –
“ Immovable property include land, buildings , hereditary allowances, right to ways , ferries, fisheries or any other benefit to arise out of land or things attached to earth but not standing timber, growing grass and growing crops.”
- The expression attached to earth has again been explained under Transfer of property Act,1882 as – things rooted in the earth , embedded in the earth, attached to what is do embedded.
- Thus , it can be said that Immovable property includes –
1. Land
2. Benefit arising out of land
3. Things attached to the earth – rooted in the earth , embedded in the earth, attached to what is so embedded.
And excludes – 1. Standing timber 2. Growing grass 3. Growing crops.
We will discuss all this contents of Immovable property in detail.
1. Land – Land is immovable property. It includes –
- anything upon the surface of the earth i.e. rivers , soils etc.
- above the land i.e. space
- Beneath the land i.e. minerals.
2. Benefits arising out of land – Benefit arising out of land or profit pendere is also immovable property. When a person use his land , the profit arise out of such land is immovable property. It can also be termed as Intangible property. For instance – Right to ferry, right to way, collect rent from immovable property, interest of mortgage in immovable property, hereditary offices etc. all are included in the term of benefits arising out of land thus to be called as immovable property.
3. Things attached to the earth –
A. Things rooted in the earth – It includes trees, shrubs etc. But excludes standing timber from the category of immovable property. Trees can be divided into two categories- timber and fruit bearing tree . The are some trees which covered under both categories such as mango tree . So whether it is immovable property or not , depends upon the intention of the parties. When a vendor sells title of his land, the title includes trees but not vice versa.
B. Things embedded in the earth –
It includes house, walls, buildings, polls etc. Something which can’t rest by their own weight on earth.
C . Permanently attached to what is embedded – This category related to those certain objects which are movable in beginning but change their category after being attached to the embedded object. For instance , windows , doors etc. are generally movable properties but termed as immovable when fixed to the house.
IN Holland v. Hodsgon² – Blackburn J . Held that circumstances indicates i.e. degree of annexation and mode of annexation , intention of the parties for permanent enjoyment.
In Duncan Industries Ltd. V. State of Uttar Pradesh³- The machines in the factory manufacturing fertilisers were to be treated as immovable property as these were fixed in the land with an intention of permanent use and there was nothing expressed in the deed about the same.
In the nutshell, it could be said that the property which can’t be seperated from land without causing it destruction, can be included in this category.
EXCLUDES
1. Standing timber – Trees the wood of which is used for making and repairing houses is called timber. Tree must be a timber tree that is in a state fit for these i.e. construction purposes and further, a tree is meant to be converted into timber so shortly that it can already be looked upon as a timber for all purposes even though it is still rooted in the earth. When timber tree is immature it will be included in the category of immovable property.
Essentials to regard timber tree as standing timber
1. Tree must be a timber tree.
2. It must be reached at a particular stage where wood is ready to be used as timber.
3. It is intended to cut reasonably early.
In Shantibai V. State of Bombay⁴– In this case , the agreement to cut the teak plants within 12 years were to regarded as Immovable property i.e. benefit arising out of land because the trees are to be getting nourishment from the soil to grow for these very years as the intention of the parties was not to cut the trees reasonably early.
In State of Orissa V. Titaghur Mills Ltd.⁵- one of the contracts of the petitioner’s company with state of Orissa for the purpose of cutting , felling, and obtaining and removing bamboo from forest areas and to convert bamboo into paper pulp etc. For this purpose, they also had right to use other products of forest also. This agreement was extended to 11 , 13 ,14 with respect to contracted areas. The court held that bamboo related contract is benefit arising out of land and didn’t relate with the contract of movable property.
2. Growing Grass – Grass is regarded as immovable property but only when there is an intention to severe it within short period of time namely chattels. But an agreement for not severance of grass within short period is regarded as benefit arising out of land thus immovable property . For instance – right to cut grass etc.
3. Growing crops – Growing crops refers to all those vegetable growths which are in existence and practically have no existence apart from their produce. Thus, it is a crop which may be in existence through the process of fruitation. Although crops are rooted in the earth but these are bound to be cut when they become reap. But the right of sowing, harvesting, cultivating crops is lease of trees themselves hence , regarded as immovable property.
Conclusion
In the nutshell, Immovable property includes land, benefit arising out of land, things attached to earth, permanent fastened to anything attached to the earth. It also includes right to way , ferries , fisheries, hereditary allowances etc. But excludes standing timber, growing grass and growing crops.
References –
1.AIR 2001 , 10 SCC 221
2.(1872 ) 7 CP 338, 334
3. AIR 2000 SCC 633
4.AIR 1959 SCC 532
5.1985 AIR 1293, 1985 SCR (3) 26
Author: Mehakpreet Kaur,
BALLB 3rd year, punjabi University Patiala