Immovable Property in Indian Law

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Introduction 

There are many types of property, including tangible and intangible, real and personal, corporeal and incorporeal, movable and immovable, and so on. The Transfer of Property Act, 1882, divides the property into movable and immovable categories. The fact that the Transfer of Property Act lacks a comprehensive concept of immovable property is surprising. “Immovable property does not involve standing timber, growing crops, or grass,” says Section 3, Paragraph 2. This is an unsatisfactory negative description. This isn’t strictly speaking a description of the word “immovable property,” because it doesn’t tell us what immovable property is, but rather what it isn’t. As a result, we must look at other Acts to see how the definition is interpreted :

Section 3 (26) of the General Clauses Act, 1897, provides a useful description of immovable property: “Immovable property includes land, advantages arising from land, and objects attached to the earth.”

→ “Immovable property shall include land, gain to arise out of the land, objects attached to the ground, or permanently fastened to something attached to the earth,” according to the Indian Registration Act of 1908. 

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What is important to remember in these meanings is that immovable property refers to objects that are fixed to the earth. The term “attached to the earth” is described as follows in Section 3 of the Transfer of Property Act: “Attached to the earth” may refer to something that is embedded in the ground, such as trees and shrubs, or something that is embedded in the ground, such as walls or houses or attached to what is so embedded for the benefit of that to which it is attached on a long-term basis.

By combining the above meanings, we can conclude that the term encompasses property, land-related advantages, and objects attached to the earth, except for standing timber, growing crops, and grass.

Definitions 

Land: It refers to a certain area of the earth’s surface that may be submerged by water, as well as the surface column above it and the ground beneath it. The word “land” refers to all things that are on or under the surface in their natural state. Immovable property includes any items placed on or under the surface by a human agency with the purpose of permanent annexation, such as houses, fences, and boundaries.

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Benefits to arise out of the land: Apart from the physical aspect, any advantages derived from land are often considered immovable property. Profits obtained from land without having any substantial control over the land are referred to as “benefits to arise out of the land.”

→ In Shantabai vs the State of Bombay Shantabai’s husband had given her permission to take wood from his Zamindari’s forests. She was not allowed to cut wood under the Madhya Pradesh Abolition of Proprietary Rights Act of 1950. She attempted to have the State Government overturn the decision but to no avail. She successfully petitioned the Supreme Court under Article 32 of the Constitution. The term “benefit arising from property” was used by the Court, and determined that the right to access the property and cut trees are a privilege derived from the land.

Things attached to earth: The term “attached to the earth” is described in Section 3 of the Transfer of Property Act as –

1) “Things rooted in the earth” – Trees and shrubs, except for standing timber, growing crops, and grasses, are all rooted in the soil. Standing trees, growing crops, and grasses are excluded from the definition of immovable property because they are only useful as timber, corn, and fodder after being severed from the soil.

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→ In Jagdish vs Mangal Pandey, the court decided that the existence and intention of the object must be examined to determine if it is movable or immovable. Apart from the size of the trees, the condition of the tree and the purpose to cut the tree or leave it rooted to the earth are important considerations in the case of trees; in the former case, it will be considered standing timber, while in the latter case, it will be considered immovable.

2) “Things embedded in the earth” – It includes items such as a home, houses, wells, and so on; however, certain items, such as an anchor embedded in the ground to carry a ship or a shovel, are not considered immovable since they are only inserted into the mud for a short time.

3) “Things attached to what is so embedded” – It includes things like homes, wells, and so on; however, certain things, like an anchor embedded in the ground to hold a ship or a shovel, aren’t considered immovable because they’re just in the mud for a short time. For example, a house’s door and windows are immovable property because they are fixed, while electric fans and window blinds are movable property.

4) “Chattel attached to earth or house” – A chattel is a movable property that has become immovable due to its attachment to the earth or a structure. When deciding whether a chattel is movable or immovable, the degree, manner, extent, and strength of attachment are the most important factors to consider.

Duncan Industries vs the State of U.P., the court ruled that they must pay stamp duty on the value of their property, including the value of their plant and machinery since it falls under the category of items attached to what is so deeply embedded in the ground.

Standing Timber: Standing timber refers to trees that are suitable for use in the construction or repair of buildings, bridges, vehicles, and other structures. When wood is sold, it must be cut and removed. It will no longer be connected to the land and therefore will no longer be considered immovable property.

In Fatima Bibi vs Arrfana Begum, Standing timber, according to the court, includes trees such as Babool, Shisham, Nimb, Papal Banyan, Teak, Bamboo, and other movable assets such as Babool, Shisham, Nimb, Papal Banyan, Teak, and Bamboo. Mango, Mahua, Jackfruit, Jamun, and other trees that are planted for their fruits rather than for their severance from the earth are not standing timber and are immovable assets.

Growing crops and grasses: Crops grown include creepers such as pan and grapes, millets (wheat, sugarcane, etc.), and vegetables such as Lauki and Kaddo. Beyond their final product, these crops have no independent life.

Grasses can only be used for fodder and have no other uses. As a result, it can be moved. A contract to cut grass, on the other hand, is a chattel interest and again arising from the property, so it is a benefit arising from the land.

Minerals: When immovable property is transferred, anything attached to it, as well as anything contained deep underneath it, is transferred as well. Minerals under the land sole are considered immovable property.


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