The term ‘property’ has not been defined in the Act. When Section 6 of the Act says ‘property of any kind’ it implies every possible interest or right that can be possessed and is a subject of ownership. It can be tangible or intangible. It can be a physical object or something abstract. Property of different kinds is dealt with differently. The movable property is dealt with under the Sales of Goods Act, 1930 while the major chunk of the Transfer of Property Act, 1882 deals with immovable property. Section 3 of the Transfer of the Property Act, 1882 is called the Interpretation clause for it explains the following terms.
|MOVABLE PROPERTY||IMMOVABLE PROPERTY|
|It can be transferred from one place to another.
Registration is optional as per the Indian Registration Act, 1908.
|It cannot be transferred without causing extensive damage to the property. The damage relates to the nature of the
Registration is compulsory under the Indian Registration Act, 1908 if the value of the property is more than Rs. 100.
The appropriate stamp duty and the registration fee have to be paid.
DEFINITION OF IMMOVABLE PROPERTY
Immovable property is a species of property. Whenever we speak about immovable property, we always use the ready reference of ‘attached to the earth’. Whether a thing is permanently attached to the earth, whether it is capable of separation or not and what is the intention behind the construction or promoted growth of the property are a few of the points that need to be looked into.
The definition of immovable property as per the Transfer of Property Act is a negative definition. The Section 3 reads that “immovable property” does not include standing timber, growing crops or grass”. Standing timber refers to trees that are fit for usage in building or repairs. Growing crop includes all such vegetables, etc that are solely grown only for their produce. Grass is referred to as fodder.
Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an exhaustive definition. It says that “Immovable property shall include land, benefits arising out of land and things attached to the earth, or permanently fastened to anything attached to the earth.” It specifies the following as immovable property.
a) LAND. It encompasses the upper as well as the lower surface of the earth. Any interest in the same will be treated as that of immovable property. It would include wells, streams etc.
b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing with rights and interests in land as defined above. Right to collect rent or zamindari rights are two examples.
c) THINGS ATTACHED TO EARTH. The nature of attachment is important.
This clause is explained with reference to the following three points:
a) Things rooted in the earth like trees, shrubs but not including standing timber, growing crops and grass. Jamun trees are treated as immovable properties.
b) Things embedded in the earth like buildings, minerals etc. By ‘embedded’ we refer to things that have their foundations laid well below the surface of the earth. An anchor of a ship is not immovable property in its normal usage.
c) Things that have been permanently fastened to anything embedded in the earth for the purpose of permanent enjoyment. For example, ceiling fans, doors and windows. If the objects that have been attached are merely transitory or not permanent and do not contribute to the value and purpose of the thing attached to, they are not immovable properties.
To determine whether a fixture is permanent or not, the following points need to be considered:
a) Mode of Annexation: Temporary, standing on its own weight or dug in to the earth, etc.
b) Purpose or Object of Annexation:
Trade fixtures are to be treated in association with the business and not the land as the fixtures are attached in connection with the business. Such fixtures are to be treated as accessory to the business and not as annexation. The position is different if the person attaching the fixtures in a business place is the owner himself.
When it is a machinery in the factory, the court has to see the object and purpose of such installation. The beneficial enjoyment of the machinery itself, the degree and the manner of attachment or annexation on to the earth are other points for consideration.
The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical aspects of property in the definition present in the said Act. The definition under the Act is as follows, “Immovable Property includes land, buildings, hereditary allowances, rights of ways, lights, ferries, fisheries or any other benefit arising out of land and things attached to the earth but not standing timber, standing crops or grass.”
CONCLUSION OF VARIOUS DEFINITIONS OF IMMOVABLE PROPERTY
All the definitions read together can give us a clear idea what is included or excluded from being an immovable property. They do not define immovable property per Se. A clear idea can be obtained by creating a common definition by mixing these three.
Immovable Property means lands, benefits arising of the lands and the things attached to the earth or permanently fastened to anything attached to the earth. Other than the physical aspect, every benefit arising from and every interest in the property is also included in the definition. It excludes three things, namely, standing timber, growing crops and grass.
STANDING TIMBER, GROWING CROPS AND GRASS
Whether a tree is timber or not depends on the category of the tree and the common purpose of such category. All the statutory definitions have excluded standing timber, growing crops and grass from the purview of an immovable property. Here the intention is of great importance. If the transaction is the immediate, the objects will be movable. But if the contract regarding such objects extends to many a year or if the owner of the trees is interested in further vegetative growth, then they will be treated as immovable property. The transfer of trees standing on land does not amount to the transfer of the land also.
For example, mangoes are treated as movable property for the intention is to pluck them seasonally and sell them. On the other hand, when a person has a right to fish from a particular lake, it is a benefit arising of an immovable property, namely, the lake. Hence, it will be an immovable property.
MARSHALL vs. GREEN — It was held that if only a right to cut and enjoy the tress as timber was sold, it is an interest in a movable property. If such a right is to extend over many years, it will be treated as an interest in immovable property.
|WHAT IS INCLUDED IN IMMOVABLE PROPERTY||WHAT IS NOT INCLUDED IN IMMOVABLE PROPERTY|
|1) A right to collect rent from an immovable property;
2) A right to receive future rents and profits of land;
3) A tenancy right;
4) Coal mines;
5) A borewell that has been fastened in a permanent way to the earth;
6) Hereditary Offices; and
7) Right to use water of a perennial stream.
|1) A right to worship;
2) A copyright;
3) The interest of a partner in a partnership firm;
4) A right to get maintenance;
5) A right to obtain the specific performance of an agreement to sell;
6) Government promissory notes; and
7) A machinery that is not permanently attached to the earth and can be shifted from one Dlace to another.
The real test if whether a property is immovable or immovable is the intention behind the transfer and the transferability of the property. For example, generally a mango tree will be treated as an immovable property but it will be treated as movable property if it is to be cut and used to build a house.