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immovable property

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40 views

immovable property

Uploaded by

Choudhary Shadab phalwan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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ASSIGNMENT 1

OF

PROPERTY LAW

TOPIC: IMMOVABLE PROPERTY

Submitted to: Submitted by:

Mohd Asif belal Shabir

Assistant Prof BA,LLB(8th sem)

Glocal university GU16R0026.

Saharanpur

1
IMMOVABLE PROPERTIES.

Definition of immovable property:


Definition in Section 3 is not exhaustive. It says only that ‘immovable property’ does not include
standing timber growing crops or grass. Definition of immovable property in Section 3(26) of
General Clauses Act, 1897, is also not exhaustive. It defines immovable property as it shall
include land, benefits to arise out of land, and things attached to earth. Thus we find that while
Transfer of property excludes certain things. General Clauses Act, includes certain things under
the head ‘immovable property’. By combing both 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.

(A)Land: It means a determinate portion of the earth’s surface, which may be covered by
water, the column of surface above the surface, the ground beneath the 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 human agency on or under the surface with the intention of permanent
annexation are immovable property, e.g., Building, wall, fences.

(B) Benefits to arise out of land: Apart from physical point of view, every benefits arise
out of land is also regarded as immovable property. Registration Act also includes as immovable
property benefits to arise out of land, hereditary allowances, right of way, lights, ferries and
fisheries. In Anand Behera v. State of Orissa, the right to catch away fish from chilka lake, over
a number of years, was held to be an equivalent of profits a pendre in England and a benfits to
arise out of land in India. Similarly, a right to collect a rent and profits of immovable property,
right to collect dues from a fair or heat or market on a land are immovable property 1.

(C)Things attached to earth: Section 3 of transfer of property defines the expression


‘attached to earth’ as including (1) things rooted in the earth, (2) things embedded in the earth,
(3) things attached to what is so embedded, and (4) chattel attached to earth or building.

(1) Things rooted in earth: include trees and shrubs, except


standing timber, growing crops and grasses (Section 3, TPA). Whether tress regarded as
movable or immovable depends upon the circumstances of the case. If the intention is that

1
AIR 1956 SC 17

2
trees should 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 oust
them down sooner or later for the purpose utilizing the wood for building or other industrial
purpose, they would be timber and of accordingly be regarded as movable property Shantabai
v. State of Bombay, determining whether the tree is movable or immovable, the intention if
party is important if the parties intend that the tree should continue to have the benefit of
further nutriment to be afforded by soil, the tree is immovable property. But if intention is to
withdraw the tree from land, and the land is providing it only as a warehouse, it is to be treated
as movable property.2

(2)Things embedded in earth: It includes such things as house, buildings,


etc., however certain things like an anchor imbedded in the land to hold a ship is not an
immovable property’ 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:

the degree or mode of annexation, e.g. tie-up seats fastened to the floor of cinema halls are
immovable property on brick-work and timber and tapestries;

the object of annexation, for, e.g., Blocks of stone placed one on the top of other without any
mater or cement for the purpose of forming a dry wall, will become part of land, so immovable
property, but not the stones deposited in the builder’s yard.

(3) Things attached to what is so embedded in the earth: it must be for


the permanent beneficial enjoyment of the to which it is attached, as section says for, e.g., door and
windows of a house are immovable property to be permanent, like electric fans or window blinds, they
are movable property.

(4)Chattel attached to earth or building if a chattel, i.e., movable


property is attached to earth or building, if is immovable property. The degree, manner, extent
and strength of attachment are the main features to be regarded in determining the question.
Standing timber, growing crops and grasses are regarded as severable from land and they are
regarded as movable property. However if they and the land on which they stand is sold, such
standing timber, growing crops or grasses will pass to purchases.

2
AIR 1958 SC 532

3
(d) Standing timber: The word standing timber includes Babool Tree, Shisham, Nimb,
Papal Banyan, Teak, Bamboo, etc. The fruit berating tree like Mango, Mahua, Jackfruit, Jamun,
etc., are not standing timber, and they are immovable properties Fatimabibi v. Arrfana
Begum.3But if intention is to cut them down sooner or later for the purpose utilising them as
timber, and not to use them for the purpose of enjoying their fruits, they are regarded as
movable property.

(e) Growing crops: Growing crops includes creepers like pan, angoor, etc., millets (Wheat,
Sugarcane, etc.), Veg like Lauki, Kaddo, etc. These crops don’t have any own independent
existence beyond their final produce.

(f) Grasses: It 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, so is immovable property.

The following has been judicially recognised as immovable property:

(1) Right to collect rent of immovable property.

(2) Right to dues from a fair on a piece of land.

(3) A right of fisheries.

(4) A right of terry.

(5) A right of way.

(6) Hereditary offices.

3
AIR 1980 All 394.

4
(7) The interest of a mortgagee in immovable property.

Minerals: Upon transfer of immovable property, things not only rooted to it, but also anything
found deep down below the property goes along with the transfer. All minerals below the land
sole are immovable property.

Movable Property
Transfer of property does not define movable property. In General Clauses Act, it is defined as
“Property of every description except immovable property”.

Some examples are right of worship, royalty, machinery not attached to earth which can be
shifted, a decree for arrear of rent, etc.

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