This article is written by Diksha Paliwal, a practising advocate in the High Court of Indore and a student of LLM (Constitutional Law). The article titled ‘Immovable Property’ briefly discusses the scope and meaning of the word property, followed by a short explanation of the two significant realms under the purview of property, i.e., immovable and movable property. The article’s main aim is to develop a deep understanding of what constitutes immovable property by taking the help of various definitions, legislations, and judicial precedents.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
A word can be interpreted in as many ways as one might choose. Similarly, the term ‘property’ is said to have a wide range of connotations. Even the Indian legislature has accorded the term with a multitude of elements. It has been used in an array of senses.
Property constitutes an essential element of the common English terminology, and its importance in today’s world can’t be ignored. Before diving into the peculiarities of this term, it is crucial to understand the term in its ordinary sense without any complexities. The most general classification of the term can be as; Incorporeal’ or ‘Corporeal’, ‘Tangible’ or ‘Intangible’, ‘Personal’ or ‘Private’, and ‘Movable’ or ‘Immovable’ Property. However, this article focuses on diverse aspects of immovable property by considering the legislation as well as some important judicial decisions in the light of immovable property.
What is property
As very well quoted by Frederic Bastiat, a former member of the National Assembly of France, “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”
The concept of property is dynamic. It has evolved drastically and has been elucidated in diverse manners in the domain of the legislature, society, and different eras of the time. The term property is transitional, just like the other inventions and creations of the human mind, and is rich with meanings.
The word ‘property’ is derived from the Latin word ‘proprius’, meaning ‘one’s own’. Though there exist several explanations and definitions of the word, which may not be very much similar to each other, the Sanskrit term ‘Swatva’ closely resembles the meaning of the Latin term ‘propirus’. The root of the term ‘propirus’ is ‘proprietas’, which is in turn very much similar to the English word property. This English term is formed from the noun ‘proper’ with the suffix ‘ty’. To sum up, all these terms from different languages etymologically hold a single meaning, i.e., something that an individual owns.
In an ordinary sense, property is something that a person exclusively owns and something peculiar to a person. Property is ownership of something, thus, giving an exclusive and unrestricted right. In the case of McAlister v. Pritchard (1921), the Supreme Court of Missouri, Division One, held that the term ‘property’ is believed to be extended to every category of valuable rights and interests. Thus, anything that a person owns can be considered to be a person’s property.
However, in the recent judgements and the evolving concepts of law, it is of no surprise that the term property is now found to be used in an extended notion. For instance, now, even a man’s reputation is considered property, and often much more valuable than any other property. This view was opined in the case of Dixon v. Holden (1996) by the Supreme Court of Missouri. Alternatively, even the ideas of intellect and expressions fall under the category of property. For example:- trademarks, copyrights, patents, etc. fall under the category of intellectual property.
Thus, it is clear from the above discussion that the term property is not just confined to ownership when looked at from a broader perspective, considering both political and sociological factors, along with its most acceptable sense. It confers upon an individual a bundle of powers. Property not just includes the things that are the subject matter of the ownership but also extends to the right of ownership or dominium or partial ownership, as the case may be. In legal notion, the term property is to include a bundle of rights and especially in the case of tangible rights, its scope extends to the right to enjoy, retain, alienate, possess and much more. In light of the Transfer of Property Act, 1882, the property is suggestive and illustrative of every possible interest a person can possess. In Indian legislatures, the term is mostly used in a broad sense.
Immovable and movable property as per the Indian property regime
The term property concerning this article can be broadly classified under two subheadings, namely, movable and immovable property. A brief explanation of the two is as follows;
Immovable property
Generally speaking, the word immovable property connotes anything that a person owns which cannot be moved from one position to another. It can be said that anything which is affixed to land under someone’s ownership falls under the category of immovable property. The immovable properties are entitled to be protected by legal statutes and are liable to taxation. Such an immovable property has rights of ownership attached to it.
The General Clauses Act, 1897 defines immovable property under Section 3(26), stating that the term shall include land, things affixed to earth or permanently fastened to anything affixed to earth, and any benefits arising out of the land. On the other hand, Section 3 of the Transfer of Property Act, 1882, does not provide an exhaustive definition. It states that immovable property is not to include standing timber, growing crops, or grass. None of the above definitions is exhaustive. These definitions just denote what is to be included or excluded from the purview of immovable property.
Thus, after clubbing the definitions provided under the two statutes, immovable property can be defined as permanently affixed to the earth, like land, trees and other substances that do not include standing timber, growing crops, or grass. There are further qualifying nuances to the term ‘immovable property’, and they have been addressed suitably later.
Section 2(6) of the Registration Act, 1908 also provides for the definition of the term immovable property. As per this Section, lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries, any profit that arises out of the land, and any other thing that is attached to the earth, or something permanently fastened to anything which is in turn attached to the earth, provided it shall not include standing timber, growing crops, nor grass falls under the category of immovable property.
Even the definition provided under the Registration Act, 1908, is not exhaustive; however, it helps to a certain extent to understand the nature and concept of immovable property. In the case Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd. (2005), the Karnataka High Court held that the term ‘immovable’ in immovable property means permanent or fixed, which cannot be moved and which is attached permanently to the immovable property.
Movable property
The term movable property in common parlance constitutes any physically mobile property or something that can be easily moved by any person. Movable property connotes almost everything that is not affixed to land, irrespective of appearance, shape, size, colour, etc. The items that fall under the category of immovable property are subject to various conditions and restrictions as stated under various Indian statutes.
The term movable property has been defined diversely in various Indian statutes.
The General Clauses Act, 1897, in Section 3(36), defines the term to include property of every description, except immovable property.
The Registration Act, 1908, in Section 2(l)(9), provides an inclusive definition of movable property. According to this, it is to include standing timber, growing crops and grass, fruits on the trees, and juice in trees, along with the property of every description other than immovable property.
The term movable property is also defined under Section 22 of the Indian Penal Code, 1860. It states the term is to include corporeal property of every description, provided that the same is not affixed to the land. The main proposition to be understood here is that the property must not be attached to the land. However, the same immovable property might become movable as soon as severed from the earth.
The Supreme Court of India in the case of State of A.P. v. N.T.P.C. Ltd. (2002), held that electricity falls under the category of property, and merely because it cannot be felt or touched or moved, it will not cease to come under this category. Anything that possesses all the attributes of a property can be considered property, be it a book, a piece of wood, patents, copyrights, etc.
In the case of State Bank of Patiala v. Chohan Huhtamaki (India) Pvt. (1981), the Himachal Pradesh High Court held that standing timber, growing crops, grass, or other such things which are attached to the earth, but the intention of making them a permanent part of the land is not present, for example, machines that are attached to land but can be shifted, all these come under the purview of movable property. Apart from this, the right to worship, promissory notes of the government, rights of a purchaser to register his land, royalty, etc also fall under the category of movable property.
When can property be classified as immovable property
To sum up, all the definitions provided under various Indian legislations, it can be said that mainly three things constitute immovable property, namely, land, benefits arising out of the land, and things attached to the earth. The last classification can further be divided into three categories: things rooted in the earth, things embedded in the earth, and things attached to what is embedded in the earth. Among the things attached to the earth, standing timber, growing crops and grass fall under the exceptional category. Let’s have an overview of the abovementioned classifications of immovable property.
Land
In common parlance, the term ‘land’ constitutes a proportion of the earth which is not covered by water. It can be connoted as an area of ground with regard to its ownership or use. The term is intended to include all the things on the surface of the earth, feasibly the column of space above the earth, and the ground below the surface of the earth. The word is comprehensive enough to engulf even the things below the surface of the earth, say sub-soil, mines, and minerals. It even covers the objects placed by the human agency on or under the earth’s surface, provided it shall be done with the intention of permanent annexation. The term also covers the things which are said to be land covered by water, for instance, well, tubewell, rivers, ponds, lakes, and streams, which are dug on the earth’s surface. These may be natural or artificial, as the case may be.
Benefits to arise out of the land
The phrase ‘benefits to arise out of land’ is considered under the purview of immovable property since it is an interest in land. Even the definition provided in Section 2(6) of the Registration Act, 1908 expressly includes this phrase under the category of immovable property. Some examples of benefits arising out of land include rent received from the house, revenue from agriculture, rent from shops and jagir, right to catch fish from pond or river, and right to collect lac from trees. Also, the right to collect dues from the market or fair situated on a plot of land, interest on the income from immovable property, lease of land, etc. even the right to extract any minerals, right to conduct an exhibition of a piece of land, right to possession, establish a hoarding or advertisement of the part of the land, right of the priest to recover dues from the funeral, management of Sarjan land, interest of the mortgagee in the property that has been mortgaged, etc. are all considered immovable property.
In the case of Ananda Behera And Another vs The State Of Orissa And Another (1955), the Supreme Court of India held that a person’s right to enter upon land and to take away fish from a pond is ‘A profits a prendre’, which is the right to take something from somebody else’s land. Thus it falls under the purview of immovable property through the category of benefits arising out of the land.
Things attached to the earth
The above-stated expression is separately defined under Section 3 of the Transfer of Property Act, 1882, to include three categories: things rooted in the earth, things embedded in the earth, and things attached to what is embedded in the earth.
Things rooted in the earth
By virtue of the definition provided under the General Clauses Act, the things rooted in the earth are considered immovable property. Thus, trees and shrubs are considered immovable property. Similar is the case with plants and herbs. However, it is pertinent to mention that this expression does not include standing timber, growing crops and grass in this category.
In the case of Suresh Chand v. Kundan (Dead) By Lrs. And Ors. (2000), the Supreme Court of India held that standing timber is a part of the earth by virtue of it being rooted in the earth. When any transfer of property of such a land takes place with timber rooted in it, then the interest in the property is bound to include that standing timber or any other thing attached to the earth unless it expressly or impliedly provided otherwise. Thus, the thing attached or rooted will go to the transferee due to a legal incident of the property so transferred. Hence, the general rule says that trees, shrubs, herbs, and plants are immovable properties.
However, when detached or cut from the earth, trees and shrubs can be sold separately as movable property. This view was expressed by the Supreme Court in the case of Mathura Das v. Jadubir (1905). Trees and shrubs though considered immovable property, as soon as they get detached or are cut down, become movable property since it loses the character of immovable property.
Things embedded in the earth
Etymologically, the term ‘embedded’ connotes something that is firmly fixed in a surrounding mass. Embedding denotes a thing whose foundation is laid underneath the earth’s normal surface and which becomes a part of the earth. Take, for instance, where stone blocks are placed on one another to frame a wall. Though no mortar or cement is used, they will be considered immovable property since it has become a part of the land. However, when the same stone blocks are just stacked on top of each other in a builder’s yard in the form of a wall, they will be treated as movable property.
There may be instances where the article is firmly fixed in the land; however, if the same has not been done with the intention of it being a part of the land, then the same will not fall under the purview of immovable property. For example, an anchor stands firmly fixed to the ground to hold the ship, but the anchor was never fixed to the ground with the intention of it being a part of the land. Thus, it will not fall under the category of immovable property. Similarly, a road roller, heavy stone, etc will not be considered immovable property. In cases where the property is embedded only up to an extent where its weight forces, it shall not fall under the category of the term embedded.
Attached to what is so embedded
The things falling under this category are the ones through which permanent beneficial enjoyment can be drawn from the immovable property to which they are attached. A thing will only be said to be attached to the earth when in some way or the other, its permanent beneficial enjoyment can be done. Doors, windows, shutters, etc are a few examples that fall under this category. These are said to fall under this because they are attached to the house. These things have no existence or meaning of their own. What good will a door do if there is no house? However, it is important to understand that these things must be attached with the intention of permanent fixation or attachment. However, fans, A.C., window blinds, sashes, etc. will not be considered immovable property, even though they may be attached to the house.
Thus the two most important things that need to be established while dealing with the fact of whether a thing falls under this category or not are;
- Permanent attachment of the thing must be there; and
- It must be attached in order to experience the beneficial enjoyment of the thing to which it is attached.
Exceptions
As discussed above, trees, shrubs, herbs and plants fall under the purview of immovable property. However, in cases where such trees, shrubs, and herbs constitute standing timber, crops and grass, they are movable property.
In the above case the term ‘standing timber’ includes trees whose woods will be used to develop buildings, houses or any other infrastructure, to make ships, bridges etc. The English Law includes oak, ash or elm trees under this category. In India, trees like neem, babul, sheesham, teak, or bamboo are considered standing timber. However, ordinarily, the trees that bear fruit stand on a different footing. These do not fall under the category of standing timber. For example, mahua, mango, jack fruit, jamun trees, etc. are not considered standing timber. The reason is they were grown with the intention of using their fruit and not for the intention of cutting them and using them later on for construction or as wood. If their intention would have been otherwise, it shall then be considered immovable property. Since standing timber is not an immovable property, a document concerning it does not require registration.
As stated above, crops also do not fall into the category of immovable property. In this relation the term ‘crop’ means any plant grown for food mainly; it includes all the fruit plants, fruit leaves, barks or roots, etc. It is to be noted that these crops are movable.
The third exception is grass. It consists of all the short plants having long harrow leaves. These are movable properties, whether they are cut or not. The main use of grass is for fodder purposes.
Difference between movable property and immovable property
As a general rule, a determinate or specified portion of land, or benefits that arise from that land, along with the things attached to the earth, falls under the purview of immovable property, whereas the movable property includes standing timber, grass, crops, stocks, shares or any other property that a person owns, and that is capable of being moved from one place to another.
In the case of Baijnath v. Ramadhan and Anr. (1962), it was held that the intention of the owner while planting the tree clarifies whether a tree will be considered as standing timber or not. In another case of Kapoor Construction v. Leela Nagaraj & Ors. (2005), it was held that three factors, namely, intention, mode of annexation and degree of annexation, determine whether the property is movable or immovable.
It is pertinent to note that while distinguishing between the above two, the first thing that is considered is that movable property can be transferred from its position without causing damage or change in its shape, size, colour or appearance. The same is not the case with immovable property. Any attempt made to move immovable property might affect the property.
A sale deed of a mortgaged property, right of worship, promissory note, a piece of machinery or whole machinery, a right to recover maintenance or any allowance, royalty, gold or any jewellery that a person owns in his name, all these come under the category of movable property. Factory, right of the ferry, fishery, harvesting, right to collect rent, a reversion in property leased, right to collect the fruits of trees that are grown in one’s ownership, etc., are some examples of immovable property.
If a thing or even the slightest of its parts is attached to the earth and goes deeper, then it is considered immovable property. However, if something is just lying on the earth on its own weight, then the same is regarded as movable property. While considering the provision of transfer, registration is required in immovable property, but this is not the case in movable property.
Case laws
Jagdish v. Mangal Pandey (1985)
Facts of the case
In the present case, the respondent herein filed a money suit against one Chingi and his son in regard to the execution of a decree. In this case, one-half of the share constituted agricultural land which consisted of trees and bamboo clumps attached to the land. The decree was passed by the lower court and also the execution took place, considering the trees, and bamboo clumps as movable property. These trees and standing timber were put to auction, which was later purchased by the respondents. The plaintiff objected to this auction and said it could not have been sold without their knowledge. The purchaser was trying to cut these trees and bamboo.
Issue before the Court
The question before the court was to decide whether these trees and bamboo clumps will be considered immovable property or movable property.
Judgement and Observation
The Allahabad High Court held that to determine whether a property will fall under the category of immovable or movable property, the nature and intention must be taken into account first. In the case of trees, the nature of the tree and the intention to cut will be considered first. If the intention is to let it remain attached to the earth, it will be deemed as immovable property, and if the intention is to cut it, the same shall be considered movable property.
State of Orissa v. Titagarh Paper Mills Company Limited
Facts of the case
In the case of Titagarh Paper Mills, a dispute arose concerning a notification issued by the government in view of Section 3B of the Orissa Sales Tax Act, 1917, where the Government of Orrisa stated that standing trees and bamboos are liable for taxation on the turnover of purchase. Several writ petitions were filed by the persons who entered into a contract with the state for the sale of timber and bamboo. The petitioners contended before the High Court that the subject matter in relation to the contract was not the sale or purchase of goods but for the lease of immovable property. Thus, the royalty paid in such a case is not liable for taxation under sales or purchase tax.
Issue before the Court
The court was to decide whether the above-mentioned trees and bamboo will fall under the category of benefits arising out of the land.
Judgement and observation
The Supreme Court affirmed in favour of the respondents stating that “felling, cutting, obtaining and removing bamboos from forest areas for the manufacture of paper” fall under the category of benefits arising out of the land. Thus, it amounts to interest in immovable property.
Conclusion
The concept of property has been in existence for hundreds and thousands of years, and the same has seen a drastic evolution in its meaning, nature and scope. The term property as focused on in this article is divided into two subheads, namely, movable and immovable property. Both categories of property consist of certain rights and duties on the owner’s part as stated under the Indian Statute. To sum up, generally, it can be said that everything attached to the earth with the intention of permanently fixing the same comes under the purview of immovable property. Apart from this, everything else falls into the category of movable property.
Frequently Asked Questions (FAQs)
What is meant by the degree of annexation and object of annexation in the context of immovable property?
The degree of annexation and object of annexation are generally the basis or a test based on which it is decided whether the thing falls under the category of ‘things embedded in the earth’. Both of them are crucial elements for consideration. In degree or mode of annexation, it means that the removal of any such property from the land will not cause any harm to the land. The object of annexation connotes permanent usage of the concerned property. Thus, if the object is for permanent usage, it is also termed immovable property.
Does equity of redemption fall under the category of immovable property?
In the case of Suraj Prasad v. Mt. Aguta Devi And Ors (1958), it was held that in simple mortgage equity of redemption would fall under the category of tangible immovable property. Similarly, a mortgagee’s interest in the mortgaged property falls under the definition of immovable property.
References
- https://deliverypdf.ssrn.com/delivery.php?ID=866105071122103094098093125095016075031054071045017087095109111101105007067071116109106101006099105006110085011118080097113099007082094092014083125107081017015073086090044076126009118072115114024020031069120004109098115107092065064068075067029017083097&EXT=pdf&INDEX=TRUE
- https://www.magicbricks.com/blog/what-is-immovable-property/125530.html
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282894
- https://legalpaathshala.com/difference-between-movable-and-immovable-property/
- Dr T. P Tripathi, The Transfer of Property Act, 1882, 5th edition, 2019.
- https://www.thebalancemoney.com/definition-of-equity-of-redemption-2866606
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