TPA Section.3 Immovable Property

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IMMOVABLE PROPERTY

In Section 3, the definition of immovable property is neither clear nor complete. It simply says that immovable property excludes standing timber, growing crops or grass. It is not clear as to what it includes.

In any Act, if the meaning of any word is not given clearly, the meaning of that word may be found in the General Clauses Act, 1897, if given there.

According to Section 4 of the General Clauses Act, immovable property includes land, benefits to arise out of land and, things attached to the earth. The definition of immovable property given in the General Clauses Act is applicable to the Transfer of Property Act. But this definition is also not complete.

Moreover, the expression ‘things attached to the earth' which is not defined in the General Clauses Act has been defined separately in Section 3 of the Transfer of Property Act.

Thus in order to get a clear and complete meaning of ‘immovable property, it is necessary to consider the definitions given in Section 3 of the Transfer of Property Act as well as the definition given in the General Clauses Act.

On the basis of the definition given in both these Acts, the expression immovable property’ may now be defined properly in the following words.

Immovable property includes—

1. Land,

2. Benefits to arise out of land, and

3. Things attached to the earth, i.e. -

i. things embedded in the, earth,

ii. things attached to what is so embedded in the, earth,

iii. things rooted in the earth except—

a. standing timber,

b. growing crops, or

c. growing grass.

Land.— Land means surface of the earth.

It includes everything upon the surface of land, the surface of land, under the surface of land and also the surface of land and also above the surface of land.

Anything upon the land, so long as it is not removed from there, shall be part of the land and as such in immovable prop .

Thus, soil or mud deposited on the surface of earth would be immovable property.

The water collected in a pit or accumulated in the pond or lake is also immovable property because the water is part and parcel of the surface of earth.

Water flowing in the river gives the impression that it is movable but its water always remains on the surface of the earth. Therefore, all the rivers have been regarded as part of the land and as such immovable property although the water is moving

Everything under the surface of land is also part of land and is included in the expression ‘immovable property’. For example, sub-soil, minerals, coal or ‘gold mines etc. The underground streams of water are immovable properties because they flow under the land. Therefore, they are included in the term ‘land’.

Moreover, not only the things on the land and under the land are immovable properties, but the ‘space which is above the land is also, part of land and is an immovable property.

Looking closely, we see that space begins just from, the surface of land and goes upto sky, as if it has been placed on the land. Thus, being part and parcel of the land, the space above the land is also immovable property.

(Owner of an open piece of land is, therefore, also the owner of the space. But because it is not practically possible to get it separated from the land and give it separately to another person who is not the owner of the land, it would be against the nature of this thing (i.e. space) to transfer it.

Therefore, although space which includes also air and light is an immovable property, it is not transferable under section 6(4)(i) of the Transfer of Property Act.)

It may be concluded therefore, that immovable property includes land and land means and includes everything upon the surface of earth, under it and also above it.

Benefits to arise out of Land.—

Besides land, the benefit which a person gets from land, is also an immovable property.

One may get a benefit from a land under some right. A right by the exercise of which a person gets certain benefits is called ‘beneficial right or beneficial interest of that person. Beneficial interest in a property is called intangible or incorporeal property

Properties are generally classified as movable and immovable But, besides this classification there is another classification of properties. Properties may also be ‘tangible’ and intangible.

Tangible or corporeal properties are those properties which have physical existence and can be seen or touched e.g. land, house, table etc.

Intangible or incorporeal properties are in the form of rights under which one gets certain benefits. They have no physical existence. Existence of such properties (beneficial right) can be known only when they are being exercised.)

Thus, any right which is exercised over a land (or any other immovable property) and by the exercise of which a person gets certain profit or gain, would be his intangible immovable property.

For example, a piece of land is immovable property, therefore, if any right is exercised by a person upon that land, that right becomes intangible immovable property of that person.

As discussed earlier, word ‘land’ is here used in wider sense. It means and includes everything upon its surface such as house, ‘pond or river’. It also includes everything beneath the land such as minerals or mines etc.

i. Thus, right of way exercised on the land or a right to use land under lease or tenancy is an immovable property

Therefore, right of a tenant to live in the house of his land-lord is an immovable property of the tenant.

ii. Similarly, right of fishery i.e. right to catch fish from a pond or river, is also an immovable property. It may be noted that the water in the pond or river is an immovable property, therefore, everything in this water including fish shall also be immovable property. And since the right of fishery is exercised on fish in the water, which is an immovable property, therefore, this right is an immovable property.

iii. Right of ferrymeans r ight of transportation on rivers or lakes by boats or steamer. Since river or lake- water is an immovable property and boats or steamers are used on such waters, therefore ‘right of ferry has been held to be an immovable property.

iv. Similarly, since land also includes everything beneath its surface such as mines, therefore, right to extract coal or gold or minerals etc. from the mines is also an immovable property.

Things attached to the Earth. - The expression things attached to the earth has been defined separately in Section 3 of the Transfer of Property Act. Things attached to the earth means

i. things embedded in the earth

ii. thing attached to what is so embedded in the earth, and

iii. thing rooted in the earth.

Things embedded in the earth. - which are which are fixed firmly in the earth and, become part of the land are things embedded in the earth.

For example, houses, buildings, walls, or electricity poles are immovable properties because they are things embedded in the earth.

Walls and houses are not just placed on the surface of the land; the surface of the earth is dug deep and thereafter the whole structure is fixed permanently

Where the things are just placed on the surface of the earth without any intention to make them 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, road-roller or a heavy stone placed on the land may go two or three feets deep into the earth by virtue of their own weight. But such things are not annexed to or embedded in the earth.

Therefore, the anchor fixed to the land in order to stop the movement of a ship and a road-roller imbedded a few feets deep into the land or other heavy things which are fixed in the land only due to their own weight, are not things attached to earth

Whether a thing is imbedded in the earth or has simply been placed on it, would depend on the fact whether the thing is intended to be a part of the land or not. Such intention can be inferred from ‘mode’ as well as the ‘purpose’ of annexation.

Thus, an anchor which is fixed in the ground to hold a ship is not immovable property but the same anchor fixed firmly in the land to hold a suspension bridge would become an immovable property.)

A machinery which is attached to concrete base by nuts and bolts to fix it firmly, cannot be regarded as a thing embedded in the earth because machinery is not fixed or attached to the land with intention of any beneficial enjoyment of the land where it is installed.

As a matter of fact machineries or other installations of business are fixed to the land for commercial purpose only They are, therefore, 'regarded as accessory to the business and not an annexation to the premises

Large vessels were fixed in a distillery for brewing liquors. It was held by the Court that the vessels (vats) were movable properties because they were fixed in the land not with the intention of any beneficial enjoyment of the land as such; they were fixed for trade purposes. (Narayana Sa v. Balaguruswami, A.I.R. (1924) Mad. 187; See also State Bank of Patiala v. M/s. Chohan Huhtamaki (india) Pvt. Ltd A.I.R. (1982) H.P., 27 )

Things attached to what is so embedded in the earth. —Where a thing is attached to something Which is embedded in the earth for its permanent beneficial enjoyment, the thing so attached would also become immovable property.

Doors, windows or shutters of a house are attached to its walls for permanent enjoyment of that house. Therefore, the doors, windows and shutters are regarded as immovable properties.

Things imbedded in the earth are immovable properties because they become part of the land. Things permanently attached to what is so imbedded would also be part of a thing which in itself is a part of land.

Accordingly, doors or windows are regarded as part of the house which is part of the land.

However, it may be noted that the thing attached must be

(a) attached permanently and must also be

(b) attached for the beneficial enjoyment of the house or building.

Things attached without any intention of making them a part of the house or building would not be immovable properties.

For example electric bulbs, window-screens or the ornamental articles are movables screens or the ornamental articles are movables because such things are attached to walls not for the permanent beneficial enjoyment of the house but only for the use and enjoyment of the ‘things’ itself.

Things rooted in the earth.— Trees, plants which grow on land or shrubs are rooted in the earth. With the help of their roots, they keep themselves fixed in the earth and become part of the land. Until cut down the trees are permanently attached to the land where they are grown. Therefore, a general rule in respect of all the trees, plants, herbs and shrubs is that they are immovable properties.

But as soon as a tree or plant is cut down it is detached from the land and is no more a part of the land. Therefore, a cut down tree or a tree which falls on the ground otherwise, shall be treated as movable property.

However, there is an exception to this general rule. Standing timber, growing crops and grass rooted in the earth, are movable properties.

Standing Timber. — Standing timber is movable property. A green tree rooted in the earth is called a ‘standing timber’ provided its woods are generally used for timber purposes i.e. for making houses or household furniture. If there is a tree the woods of which are fit to be used for making doors, windows or furniture, the same tree which under general rule is an immovable property, shall be treated as ‘standing timber’ and as such a movable property.

For example, the woods of Sheesham, neem, babool or teak trees are used for making houses doors, tables or chairs, therefore these trees have been held to be movable properties although they are the ‘things rooted in the earth’ (Baijnath v. Ramadhar, A.1.R. (1963) All. 214; Ramkumar v. Krishna Gopal, A.I.R. (1946) Oudh 106; Kunhikoya v. Ahmed Kutty, A.I.R. (1952) Mad. 39.).

Bomboo trees have no utility except that they may be used in m houses or as poles, therefore, bamboo trees have been held to be movable properties (State of Orissa v. Titaghur Paper Mills Co Ltd., A.I.R. (1985) S.C. 1293.).

Fruit-bearing trees are not standing timber. They are planted and grown for taking fruits etc. from them and not for taking their wood. Therefore, fruit-bearing trees are immovable property (Moti Singh v. Deoki Singh, A.I.R. (1936) Pat. 46.).

Mahua tree has been held as an immovable property (Chandi v. Sat Narain, A.I.R. (1925) Oudh 108.)

Similarly, palm or date- trees which are used exclusively for taking their fruits or drawing toddy from them, have been held immovable property (Sheik Jan Mohammad v. Umanath Mishra, A.I.R.(1962) Pat. 441.) .

There are certain trees, for example a mango- tree,which give us fruits but their wood is also used for timber purposes. Whether such trees are standing timber (i.e. movables) or not depends upon the intention of its owner. If its owner intends to keep the tree growing and green for ever, the tree is not standing timber even if its woods are fit to be used for furniture etc.

On the other hand, if the owner intends that the tree is to be cut down soon for utilising its wood, the green tree would be standing timber.

Where A sells a mango-tree to B and B purchases it so that he and his children may enjoy its fruits, the sale is the transfer of immovable property. But if B purchases the tree in order to cut and remove the tree for making house or furniture, the sale is transfer of movable property.

In Shanti Bai v. State of Bombay (A.I.R (1958) S.C. 532. .), the Supreme Court has held that if the owner of a tree is interested in the further vegetative growth of the tree (i.e. intends to keep the tree alive) it is a ‘tree (immovable) ; but if it is intended that the tree is to be cut reasonably early, the tree is a standing timber (movable).

Growing Crops and Grass .— Growing crops and growing grass are movable properties. Growing crops means crops standing in the field.

Although the, crops, say of wheat and barley, are nothing but a collection of plants rooted in the field yet, they are not immovable property because every crop is bound to be cut in the near future when it becomes ripe.

The crops in the field have no use except their produce. The crops of wheat or paddy etcand also the vegetable crops of potato etc. are, therefore, movable properties. Sugarcane crops (39. Kalka Prasad v. Chandan Singh, (1888) 10 All. 20.) and the crops of indigo (neel) (40. Bansidhar v. Sant Lal, (1887) 10 All. 133; Misri Lal v. Mozhar Hossein (1886) 13 Cal. 262. )have been held movable property. Crops include creepers. Crops of grapes and the crops of betel leaf (pan) etc. are also movable properties.

Like crops, the growing grass rooted in the earth, is also a movable property. Grass in the field has no other utility except that it could be used as fodder for the cattle. For this, it is bound to be cut down or be grazed by some animal. No further vegetative growth may be intended by the owner of the land upon which the grass is grown.

However, since-the right to cut grass is a right exercised upon the land, this right is a ‘beneficial’ interest in the land’ and as such, an immovable (incorporeal) property ( 41 .SeeniChettiar v. Santhnathan, (1897) 20 Mad, 58 (F.B.). )

Examples of Immovable Property Besides well known of immovable property given above, there are several interests or rights which have been recognised by the Courts as immovable property. Some of such immovable properties are given below:

1. Beneficial interests arising out of land, for example, right of way (42. Bejoy Chandra Nag v. BankuBanke, (1908) I.C. 116. )or an easement (43. Mahadeo Rao v. Kashibai, I.L.R. 34 Bom. 287.)

2. Rights under lease- or tenancy 44. Municipal Corpn. Bombay v. Lala Pancham, A.I.R. (1965) S.C. 1008.

3. Rights to extract gold, silver, coal or other minerals fro their mines 45. Kumar Pashupati Nath v. Sri Sankari Pd; A.I.R. (1957) Cal. 128 .

4. Right of fishery i.e. right to catch and collect fish from a pond. tank, lake or river (46. Bihar Fishermen Co-operative Society v. Sipahi Singh. A.I.R. (1977) S.C.2149. Satosh Jaiswal v. State of M.P. A.I.R (1996) S.C. 207. )

5. Right of ferry i.e. right of transport through rivers (47. Krishna v. Akilenda, (1885)13 Mad 54.).

6. Right to collect dues from fair or hat (48. Sikhandar v. Bahadur, I.L.R. 27 All. 462.)

7. Right to hold exhibition or fair On one’s land (49. Ganpati v. Ajmer, (1955) S.C.R. 1065.)

8. Right to take forest produce e.g. tendu leaves etc. and soil for making bricks (50. Mahadeo v. State of Bombay, A.I.R.(1959) S.C. 735.)

9. Right to collect Lac from its trees (51. Kamal Singh v. Kali Mehton, A.I.R. (1955) Pat. 402.)

10. Mortgage-debt i.e. a loan secured by mortgaging an immovable property (52. Perumal v. Perumal A.I.R. (1921) Mad. 137. However, for purposes of attachment and execution of decree under the Civil Procedure Code, it is treated as movable property. Lal Uma Rao v. Lal Singh, A.I.R. (1924) ALL. 796.)

11. Equity of redemption (53. Umesh Chandra v. Zahur Fatima, I.L.R. 18 Cal. 164 (P.C); Paras Ram v. Govind, (1897) 21 Bom. 226.)

12. Office of the hereditary priest of a temple and also its emoluments (54. Raghoo v. Kasshy, (1883) 10 Cal. 73; Krisnabhat v. Kapabhat 6 B.H.C. .R. 137. ).

13. Right of a Maha Brahmin to receive dues at a funeral (55. Sukh Lal v. Bishambhar, (1917) 39 All. 196 However, ‘YajmanVritti’ i.e. right to collect offerings from ‘yajmans’ is not immovable property.)

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