The types of immovable properties judicially recognized in India.

What is immovable property and the incidents of immovable property which are judicially recognized in India?

Synopsis:-

1. Introduction
2. Definition of immovable property
3. Incidents of Immovable property recognized judicially
4. Case laws
5. Conclusion

1) Introduction:-

                        The transfer of property Act 1882 is enacted to Define and amend the law relating to transfer of property  by Act of parties and not to transfer by operation of law.  This act came into force on 1st July 1882.

• Objectives

                a) to bring the rules which regulate the transmission of property between living persons into harmony with rules

                b) to complete the code of contract law, so far as it relates to immovable property

The transfer of property at is a substantive law establishing the right and duties of the parties under transaction, i.e  transfer and not a procedural law.   Therefore it has no retrospective effect.  Some of the principal of this art are based on principle Justice equality and good conscience.

2) Definition of immovable property:-

                               Section 3 of transfer of property Act 1882 defines the term immovable property as:-

it provides in this Act unless there is something repugnant in the subject or context-

immovable property does not include standing Timber growing crops or grains.

The definition of immovable property given in this section is not  exhaustive.   It simply says:  immovable property does not include standing Timber,  growing crops or  grass.  The definition of immovable property in the General Clause Act 1897 Section 3 (26)  is also not exhaustive.

That Definition is as follows:

                               Immovable property shall not include land,  benefits to arise out of land, and things attached to the Earth  all permanently  fastened  do something attached on Earth.

The definition of immovable property  in the general Clauses Act,  1897 applies to transfer of property Act,  the transfer of properties at exclude certain things while the general Clause Act includes certain things in the definition of immovable property. If we read both the definitions  of immovable property.  If we read both the definition  then the term immovable property includes  1) land, 2)  benefits arise out of land, 3)  things attached to the Earth;  except standing Timbers, growing crops and grass.

The definition of immovable property under Section 3 of Indian registration act 1908 is more  adequate and appropriate  which leads as under:-

immovable property includes land, buildings, hereditary  allowances, right to ways, lights, ferries, fisheries  or any other benefits to arise out of land and things attached to the Earth  but does not include standing Timber green crops or   grass.

The definition of immovable property given in this three  statutes  give no guidance as to  what is meant by attached and permanently fastened.

Let's see various aspect in the definition:-

a)  land-

        The term land includes the following elements:-

1. It determinate  portion of the surface of the Earth
2. The ground beneath the Earth
3. All objects which are on  or under the surface in its natural states including mineral, lakes, ponds, and river within its boundary
4. All objects placed by human Agency on or under the surface wedding intention of permanent annexation including thereby   buildings, walls  and fences.

b) Benefits to arise out of land-

Every benefit arising out of immovable property and every interest in such property is also regarded as immovable property.  The Indian registration Act, expressly include benefit to arising out of land heredity  allowances right of way lights ferries  and fisheries.   In the definition of immovable property.  A debt  secured by mortgage  of immovable property  is an interest in the land, is,  therefore,  regarded as immovable property.  The  right to collect lac from the trees, a right to take minerals,  rent from Marketplace or house are instance  benefits to arise out of land hands, regarded as immovable property.

c) Things attached to the Earth-

        The term attached to the Earth includes:-

1. Things rooted in  the Earth-  it includes such things as trees or as shrubs  such as standing timber.  Trees and shrubs once cut off becomes movable property. if the intension is to use them for the purpose of enjoying their fruits, they will be regarded as immovable property.
2. Things imbedded in the Earth-  It includes houses and buildings.  An anchor imbedded in the land to hold a ship is not immovable property. Thus, what is imbedded in the earth depends upon the circumstance of each case. Things imbedded must be for the permanent beneficial enjoyment of that thing to which it is attached      e.g. :- The doors  and windows of the house are attached to the house for permanent enjoyment of the house.
3. Chattel attached to the earth or building- The degree, manner, extent  and strength of attachment of the chattel to the earth or building, are the main feature to be regarded. It may be a movable property attached to the earth.
4. Standing timbers, growing crops, grass - These are regarded as severable from the land on which they stand and therefore they are not included in the term immovable property.

3) Ingredients of immovable property recognized judicially:- 

        The following have been judicially recognized as a immovable property-

1. Right to collect rent of immovable property,
2. Right to collect dues from affair on piece of land,
3. Right to Ferry,
4. Right of way,
5. Right of Fishery, i.e  the right to catch and carry away the fish,
6. A debt secured by mortgage of immovable property,
7. hereditary offices,
8. right to receive future rent and profit of land,
9. The equity of redemption,
10. A factory,
11. The right to collect lac from trees,
12. The interest of a mortgagee in immovable property,
13. Reservation in  property leased.

        But the following are not immovable property

1. Right of worship,
2. A royalty,
3. a degree for sale of immovable property,
4. I right to recover maintenance allowance,
5. Machinery which is not permanently attached to the Earth,
6. Government promissory notes,
7. Standing Timber growing crops and grass.

4) Case law:-

                    a) Perumal vs. Ramaswami, AIR 1963 Mad. 346.

Court Held that the attachment  of oil engine to earth is a fixture, is for the beneficial enjoyment of the engine itself and in order to use engine, it has to be attached to the earth and attachment lasts only so long as the engine is used. when it is not used it can be detached and shifted to some other place. The attachment in such case does not make the engine part of the land and hence not immovable property.

                    b) Shantabi vs. State of Bombay, AIR 1958 S,C 532,

Court Held that, things that rooted in the earth includes such things as trees and shrubs,  but where such trees constitute standing timber they are not immovable property.  But if the intention is to cut them down sooner or later for the purpose of utilizing the wood for building or other industrial purposes it would be timber and would accordingly be regarded as movable property.

                    c) Shiv Dayal vs. Pattu Lal AIR 1933 AIL.50.

Court held that a mortgage with possession of a fruit bearing tree with the intention that the mortgagee is to enjoy the fruit but not to fell the tree , is a mortgage of immovable property.

                    d) Sukry Kurdepa vs. Goondakull, 1872.

In this case judicial Holloway of Madras High Court explain the distinction between movable and immovable property.  If a thing cannot change its place without injury to the Quality by virtue  which it is,  what it is,  it is immovable.  Certain things such as piece of land are in all circumstances immovable  property. Other things such as trees attached to the land are,  so long as they are so attached,  immovable;  when the severance  has been effected they become movable.

5) Conclusion :- 

On going through a definition of immovable property given in transfer of property Act,  Indian Registration Act and general Clauses Act,  the definition of immovable property includes land,  benefit to arise out of land,  and  things attached to earth  but does not include standing timber growing crops and grass.  The Supreme Court of India and various High courts of States  have recognized by judicial pronouncement various properties as immovable as well as movable mentioned above.