What are Immovable Property?
Section 3 (1) of the Transfer of Property Act of 1882 defines immovable property. Indian law has accepted the technical separation of property into real and personal property recognized by English law, rather than the split of property into moveable and immovable. Their Lordships of the Privy Council stated in Futtehsang v. Kulliaraiji that “the phrase immovable property’ encompasses certainly all that would be real property according to English law and possibly more.” In England, a leasehold land would be personal property, but in this country, it would be immovable property. The phrase is defined in India under the T.P. Act, the General Clauses Act, and the Indian Registration Act.
1. T.P. Act
There are two parts to the definition of immovable property. The term “immovable property” is defined in Part I. Part II explains what it means to be “connected to the soil.” Both must be read in order to understand “immovable property.” Land, benefits arising from land, and anything attached to the soil are all included in the definition of immovable property. Three items are excluded: standing timber, growing crops, and grass. This Act’s definition of “immovable property” is a negative term that is neither exhaustive nor comprehensive. “Standing timber, growing crops, and grass” are the only things it excludes. The Act’s definition does not provide much further assistance to the reader. He is left with nowhere to go. It simply states that three things are not immovable: standing timber, producing crops, and grass. So, what exactly is immovable? Because there is no clear definition of “immovable property,” readers are likely to look outside of the Act to find out what is meant by the phrase. This most likely contains the residue. If it is not expressly proclaimed to be mobile property, it will typically fall within the word “immovable” if it is defined as such by any other legislation.
In Sukrey Kurdeppa v. Nagireddi, Mr. Justice Holloway stated, “In Sukrey Kurdeppa v. Nagireddi, Mr. Justice Holloway stated, ” “Movability can be described as a capacity in a suffering thing to change its relationship to location; immovability is the inability to change its relationship to place. However, if a thing can’t move without compromising its quality, it’s immovable.”
2. General Clauses Act
Immovable property is defined as “land,” “benefit arising out of land,” and “things attached to the earth, which means rooted in the earth, embedded in the earth, or permanently fastened to anything embedded for its permanent beneficial enjoyments,” according to Section 3 sub-section (25) of the General Clauses Act, 1897, which applies to this Act. This definition only applies to tangible objects and does not provide a full test of what constitutes immovable property. The definition of immovable property in the General Clause Act is the same as “attached to earth” in the T.P. Act. In contrast to the T.P. Act, there are no exceptions in the General Clauses Act (standing timber, growing crops and grass).
3. Indian Registration Act (Section 2(6))
“Immovable property” is defined as “land, buildings, hereditary allowances, right of ways, lights, ferries, fisheries, or any other benefit derived from land and things attached to the earth, or permanently fastened to anything attached to the earth, but excluding standing timber, growing crops, or grass.” The Registration Act’s definition combines the principles of the Transfer of Property Act and the General Clauses Act. Despite this, it is impossible to say that this definition is exhaustive. It’s still enumerative in nature. Read all three acts together to obtain the full meaning of immovable property. The word “immovable property” refers to the three items listed below-
(i) Land —This term does not refer only to the earth’s surface, but also to objects beneath it, such as minerals and the sea, as well as properties beneath the ocean’s bottom. All of this is immovable property. Any interest in or in relation to these, as well as any other property in it, is immovable property. Aside from that, all interests in wells, tube wells, rivers, ponds, tanks, streams, and canals dug on the surface, whether natural or manmade, would be included in the definition of “land.” As a result, they are all immovable property.
(ii) Land-based advantages – These are immovable benefits. Rent from the house, stores, and jagir, agricultural earnings, the right to harvest lac, leaf, or other items from the forest, trees, and so on are examples of advantages. Similarly, the ability to collect tahbazari and Baithaki from rural markets, as well as the authority to collect tax on ghats and bridges, are also examples of land-based advantages.
The Supreme Court has ruled that the right to enter land and take fish from a lake is a right to profit de prendre, and that it is immovable property in India as a benefit arising from the land. Thus, benefits originating from land, and thus immovable property, are included by the right to profit de prendre, unless they relate to standing timber, growing crops, or grass, which are specifically excluded under section
3. The Indian Easement Act defines profit de prendre as an easement. It includes the right to pluck flowers from another’s garden, the right to take and carry water in a bucket from another’s well, canal, or private domestic tank, and the right to collect wood, twigs, and leaves, among other things.
(iii) Things that are connected to the earth— This might refer to three different things-
(a) items that are rooted in the ground, such as trees and shrubs
(b) items entrenched in the ground, such as walls and houses, and so on
(c) items secured for the long-term enjoyment of anything so implanted, such as doors, windows, ceiling fans, pegs, and so on.
Immovable attribute is defined correctly as-
When the negative definition in the Transfer of Property Act and the positive definition in the General Clauses Act are combined with how it is defined in the Registration Act, the result is as follows :
Land, benefits arising from land, and anything attached to the soil are all considered immovable property. Standing timber, growing crops, and grass are all prohibited. Immovable property, by definition, encompasses land, benefits derived from land, and anything attached to the earth, with the exception of standing timber, growing crops, and grass. Growing crops are an exception to the rule of things that are rooted; they are not immobile. These are items that can be moved around. Grain crops such as wheat, barley, and gramme, as well as vegetable plants, flower plants, creepers, and sugar cane, are all included.
Grass- Grass is moving property; it is never immovable. Grass, whether cut or uncut, is a transportable asset. Its primary application is as fodder. It doesn’t matter if the grass is growing in meadows or on a fodder cutting machine. For the purposes of the Transfer of Property Act, both are movable property in all forms. It’s possible that the right to cut grass from a pasture isn’t immovable property.
The Madras High Court held in Seeni Chettiar v. Santhanathan that it has long been established that a contract for the sale and purchase of uncut grass, growing timber plant or wood, or growing fruit bearing tree, not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser, plants in nurseries, is a contract for the sale of an interest in land. It isn’t a transportable piece of real estate.
Immovable property does not include the following items:
1. The freedom to worship.
2. Purchaser’s right to have land registered in his name.
3. A machine that is not permanently anchored to the ground and can be moved from one location to another.
4. A decree authorizing the sale of real estate.
6. The right to reclaim maintenance allowances even if they are charged on immovable property.
7. Promissory notes issued by the government.
8. Standing timber, or trees that have not been severed from the ground or are not intended to be cut from the soil and are to be utilized as in construction and maintenance of dwellings.
9. Growing crops
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