Immovable Property in Transfer of Property Act, 1882
Immovable Property
Immovable property has been interpreted
under section 3, Chapter I (Preliminary) of Transfer of Property Act, 1882 as
follows;
“immovable property” does not
include standing timber, growing crops or grass.
Thus it is a negative definition which is not inclusive and extensive.
General Clauses Act, 1897 defines
immovable property as including “land”,
benefit arising out of land and things attached to the earth, or permanently
fastened to anything attached to the earth.
This definition also has certain limitations as it has reference only to physical object and does not provide the answers of the questions such as what immovable property is, what is not.
On the whole, the term immovable property covers:
1. Land: Land includes upper surface as well as things lying below the land. For instance, minerals are also the part of land and will be considered as land so the immovable property. Moreover, tube well, well, rivers, ponds, tanks, stream, canal, dug on surface whether natural or artificial. All interests regarding these will make the term land hence immovable property.
2. Benefits Arising out of Land: These are also considered as immovable property. Benefits of land can be such as rent from house, shops and Jagir, revenue from agriculture, right to collect lac, leaves or other things from forest tress, right to collect Tahbazari from rural market, baithaki right to collect tax on ghats and bridges etc. are examples of benefits arising out of land.
A right to enter upon land and to carry away the fish from a lake is a right to profits-a-prendre and it amounts to immovable property in India as a benefit arising from land.
3. Things attached in the Earth: These are the things which have their roots in the earth and are called as immovable properties for instance; trees, fruit bearing trees and shrubs. Here important point what is to be taken care is that standing timber, growing crops and grass are already declared as movable properties hence these are not immovable property.
4. Things embedded in the Earth: These are the things which have their foundation laid below the normal surface of the Earth, for example; walls and building.
5. Things fastened to things embedded for its permanent beneficial enjoyment e.g., windows, doors etc.: These windows and doors are fastened to walls and ceiling, for the permanent beneficial enjoyment of a room or a house. These are necessary for permanent enjoyment of immovable property so these are called as immovable property but ornamental fittings, festivities, electrical appliances and other decorations though fastened to walls, doors, etc. are not so attached for the simple reason as these are not permanent and are not beneficial to the wall or door. And that are the causes why these are not called as immovable properties.
Definition of Immovable Property under
Indian Registration Act – Section 2 (6) states that immovable property includes
land, building, hereditary allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of land and things attached to the
earth, or permanently fastened to anything which is attached to the Earth, or
permanently fastened to anything which is attached to the Earth but not
standing timber, growing crops or grass.
Examples of Immovable Rights:
1. A jalkar right
2. The equity of redemption
3. A right of ferry
4. Rights and interests of a grove holder in a grove
5. A right to way and earth before separation from the soil
6. A right of easement
7. Advertisement hoardings fixed in the substantial manner in the land
8. A hereditary office under Hindu Law
9. A pension or periodical payment or allowance granted in permanence
10. A right to vatan
11. A right to jagir income
12. A right to use water of perennial stream of water
13. A right to take produce of inam land free from assessment
14. A right to collect rents and profits of land but the right of a person to arrears of rent of the land sold to him cannot be said to be a benefit arising out of land and cannot constitute immovable property
15. A right to possession and management of Sarjan Land
16. A right to sever and collect leaves of the Tendu tree
17. A right to collect lac from the Parsa or Palas tree
Examples of Immovable properties:
1. Right to worship
2. Right of purchaser to have lands registered in his name
3. A machinery which is not permanently attached to the earth and which can be shifted from one place to another
4. A decree for sale of immovable property on a mortgage
5. Royalty
6. Right to recover maintenance allowance even though charged on immovable property
7. Government promissory not
8. Standing timber
9. Growing crops
10. Grass
Note: Standing timber means trees
which are to be used in building and repairing houses and which have not been
severed from the ground or which are not proposed to be severed from the soil.
Case
Laws
Babulal v. Bhavani 1912 It
was held that definition of immovable given in General Clauses Act is
applicable to Transfer of Property Act.
Anand Behera v. State of
Orissa AIR 1955 Right to profits - a prendre are benefits
arising out of land and are immovable.
Shantabai v. State of Bombay
AIR, 1958 Based on Anand Behra Case, The honorable
Supreme Court held that right to enter upon land and cut trees is a benefit out
of land.
T.A.Sankunni v. B.J.Philips
AIR 1972 The court held that if the intention of
planting tree is to cut them for utilizing them as timber and not to use for
the purpose of enjoying their fruits, they are considered as movable property.
Fatimabibi v. Arrfana Begum
AIR 1980 the court defined the standing timber as
movable property with examples of trees and held that the word standing timber
includes trees like Babool, Shisham, Neem, Peepal, Banyan, Teak, Bamboo etc. and
are movable properties.
The trees like Mango, Mahua, Jackfruit, Jamun etc. are planted for their fruits and not with the intention of their severance from the earth is not standing timber and they are immovable properties
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