SUMBITTED BY

-JINU SAMYUKTHA
PADMAKUMAR
BA.LLB(4th sem)
BSOLS
SUBMITTED TO-
MRS NIVYA VALSAN
SUBMISSION DATE-
1/6/2020

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contents
Introduction

Meaning of land

Things attached to the earth

Meaning of things embedded in earth

Meaning of chattel attached to earth or building

Standing timber

Distinguish between movable and immovable property

Conclusion

Bibliography

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3
Introduction

Immovable property is property that cannot be moved from one place to another. ... The term
immovable property also includes the land. In real estate law, immovable property has certain
rights of ownership that go with title (full or partial) to that property.1

The TPA Act has not defined this term. It only says that, “immovable property” does not
includes standing timber, growing crops or grass.2

Section 3(26) of general clause act is as given below:

"immovable property" shall include land, benefits to arise out of land, and things attached to the
earth, or permanently fastened to anything attached to the earth;3

Section 2(6) of registration act ,1908 defines immovable property as -

“immovable property” includes land, buildings, 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, but not standing timber, growing
crops nor grass".4

“attached to the earth” means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is
attached;5

By combining all the above definitions we can say that immovable property includes land ,
benefits arising from it things attached to the earth ,except standing timber growing crops and
grass.

MEANING OF LAND

Land include following elements-

 Determinate portion of Earth’s surface.

 Column of space above surface.

1
https://simple.wikipedia.org/wiki/Immovable_property
2
sec 3 para 2 ,transfer of property act
3
sec 3(26),general clause act
4
Section 2(6) of registration act ,1908
5
sec 3 para 6 ,transfer of property act

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 All objects either on or under the surface of land in their natural state. Ex. Minerals

 All objects placed by human with intention of permanent annexation. 6

Benefits to arise out of land

The phrase 'benefits out of land' means profit derived from land without having any substantial
control over the land benefits arising out of land is also known as 'profit a prendre'. A right to
collect rent and profit of immovable property , right to collect dues from a fair or heat of market
on land are immovable property .

Right to collect-lac , leaves etc. From trees, revenue from agricultural land, right to take out
minerals, to collect fish ponds, debt secured by mortgage of immovable property, rent from
tenanted property all are benefits arising out of land.

 All the benefits arising out of land are also considered as immovable property because such
benefits cannot be served from the land and are incidents of it.

Benefits arising out of land.

Case laws

1. Shantabai v. State of Bombay, (1959)7

Right to enter on the lands in order to cut down trees and carry away wood.

FACTS: shantabais husband had granted her the right to takke and appropiate all kinds of wood
from a certain forest in his Zamindari through an unregistered documen . With passing of Mdhya
Pradesh abolishtion of Propriety Right Act,150, all propriety rights in land vested in the state of
madhya pradesh and the petitioners was prohibited to cut wood. She applied to the deput
commissioner and obtained from him an order under sec6(2) of the act permitting he rto work in
the forest and started cutting trees. The divissional forest officer took action against her and
passed an order but to no effect. Thereafter she applied to the SC under art 32 of the constitution
and contented that the order of forest officer infriged her fundamental rights under art 19(1)(g).

Judgment: the court held that right to ender and cut trees falls and the phrase 'benefit arising out
of land'.

2. Anand Behera v. State of Orissa, (1955) 8

6
https://thefactfactor.com/facts/law/civil_law/topa/immovable-property/2229/
7
AIR 1958 SC 532
8
(1955) 2 SCR 919

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Right to profits a prendre are benefits arising out of land and are immovable property. For
example, a right to enter upon land and to carry away fish from pond is a right to profits a
prendre and is, therefore, immovable property.

FACTS: The petitioner had obtained a license to catch and appropriate all fish in specific
sections of the Chilka lake from its proprietor (Raja of Parikud). With the passing of the Orissa
Estates Abolition Act, 1951 ownership of the estate vested in the State of Orissa. State of Orissa
refused to recognize the license of petitioner. Petitioner contended that their fundamental rights
under Art 19(1)(f) and Art 31(1) is being infringed and they also contended that ‘catching and
appropriating fish’ is a transaction relating to sale of future goods (which is the fish) and hence
the Act which is applicable only to immovable property would not be applicable on him.

Judgment: The court held that the lake is an immovable property and therefore the petitioner’s
right to enter in that estate (which he did not own) and carry away fish from the lake is a ‘profit a
prendre’ and in India it is regarded as a benefit that arises out of the land and as such is
immovable property.

Bihar Eastern Gangetic Fishermen Cooperative Society Limited v. Sipahi Singh9

FACTS: The fishery rights in the Gangapath Islampur Jalkar which was with the Fishermen
Cooperative Society from 1974 to 1975 for Rs. 150000 was made in favour of the respondent
Sipahi Singh for the period 1975 to 1976 as a result of the public auction at which he offered the
highest bid of Rs. 165000. However, the respondent requested for a remission in the amount at
which the settlement had been made in his favour, on the ground that he had suffered a heavy
loss during the year 1975-76, due to the unlawful activities of the appellants and if this was not
possible, then in the alternative give him a continuance of fishery rights for the years 1976-1977
and 1977-1978 so that he could recoup his losses. The Government agreed to extend the time for
his fishery rights in consideration of a deposit of Rs 165000. However, the government changed
its mind later and settled the fishery rights with the appellant. Sipahi Singh (the respondent)
challenged this order by filing a writ petition under Art 226 of the Constitution.

Judgment: “The right to catch and carry away the fish being a ‘profit a prendre’ i.e. A profit or
benefit arising out of the land, it has to be regarded as immovable property within the meaning
of the Transfer of Property Act, read in the light of s. 3(26) of the General Clauses Act. If a
‘profit a prendre’ is tangible immovable property, its sale has to be by means of a registered
instrument in case its value exceeds Rs. 100/- because, of section 54 of the Transfer of Property
Act. If it is intangible, its sale is required to be effected by, a registered instrument whatever its
value. Therefore, in either of the two situations, the grant of the ‘profit a prendre’ has to be by
means of a registered instrument. Accordingly, the transaction of sale of the right to catch and
carry away the fish if not effected by means of a registered instrument, would pass no title or
interest.”

9
(1977) 4 SCC 145

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 State of Orissa v. Titagarh Paper Mills Company Limited10

FACTS: Section 3B of Orissa Sales Tax Act, 1917 empowered the State Government to declare
goods or class of goods liable to be taxed. The government issued a notification through which
standing trees and bamboos agreed to be severed were liable to be taxed on the turnover of
purchase.  Writ petitions were filed by a group of those people who had entered into bamboo
contracts and timber contracts with the State. The respondent (group of petitioners who had
entered into agreement with the State for the felling, cutting obtaining and removing bamboos
from forest areas ‘for the purpose of converting the bamboo into paper pulp or for purposes
connected with the manufacture of paper or in any connection incidental therewith’, i.e., bamboo
contracts) contended before the High Court that the subject matter of the bamboo contract was
not a sale or purchase of goods but was a lease of immovable property or was a creation of an
interest in immovable property by way of grant of ‘profit a prendre’ and due to this the royalty
payable under the bamboo contracts could not be made exigible to either sales tax or purchase
tax.

Judgment: The SC after referring to the terms and conditions of the bamboo held that “felling,
cutting, obtaining and removing bamboos from forest areas for the manufacture of paper” is a
benefit to arise out of land and it would thus be an interest in immovable property.

 Bibi Sayeeda v. State of Bihar11

FACTS: Certain municipal plots were transferred to Sayed Imam by his predecessor Zamindar.
He constructed several shops in 4 plots of the land and let them out to diverse tenants on monthly
rentals. The state wanted to acquire these shops under the Bihar Land Reforms Act. The question
raised in this case was about the meaning of the word ‘Bazar’ within Section 4(a) of the Bihar
Land Reforms Act 30 of 195 or short the ‘Act’. The appellants (legal representatives of Syed
Imam) claimed in the writ petition that the shops are ‘homestead’ within the meaning of Section
2 (j) of the Bihar Land Reforms Act and these shops are not bazars. They do not vest in the State
and, therefore, they remain to be the property of the appellants. The High Court repelling the
contention held that ‘hats’ or ‘bazars’ are vested in the State. A congregation of buyers and
sellers is enough to constitute a bazaar and the right to hold a bazar is an interest in the land.

Judgment: The Supreme Court affirming the decision of the High Court held that right to hold a
bazaar is a benefit arising out of immovable property.

In order to determine whether a particular grant is a ‘benefit arising out of the land’ the Courts
have in some cases looked at the substance of the agreement and the terms and conditions
incorporated in the agreement by the parties (as was done in the case of State of Orissa v
Titagurh Paper Mills Ltd.). Some of the other landmark judgements of the SC which discuss
about ‘benefits’ rely on the Anand Behera case (eg: Shantabai v State of Bombay; Bihar Eastern
10
 AIR 1985 SC 1293
11
(1996) 9 SCC 516

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Gangetic Fishermen Cooperative Society Ltd v Sipahi Singh).  So basically, there is no specific
test laid down to classify a grant as a ‘benefit’ which makes it very vague. Courts have relied on
precedents to recognise a right as ‘benefit’ and the classification of this type of a grant is not
based on any sound legal test/principle.12

THINGS ATTACHED TO THE EARTH

Section 3 of TPA Act says that ‘attached to the earth’ means-

A) Rooted in the earth, as in case of trees and shurbs.

B) Imbedded in the earth, as in case of wall or buildings

C) Attached to earth for permanent beneficial enjoyment.

Things rooted to the earth are immovable property . Things rooted in earth include trees, shrubs,
except standing timber, growing crops and grass. The reason for excluding these of immovable
property is that they are useful as timber ,corn and fodder only after their severance from the land
.whether trees regarded as moveable or immovable depends upon the intention of the user . If the
intention is to continue to have the benefits of further sustenance or nutriment by the soil
(land),eg enjoying their fruits, then such tree is 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, they would be timber and of accordingly be regarded as movable property.

V.P.Fakrudheen Haji vs State Bank Of India, 200813

In view of the definition of the term "attached to earth" in S.3 read with S.8 of the Transfer of
Property Act, even if the title deed or the schedule of property attached thereto does not mention
that the house in the property which is the subject of transfer is also transferred, the transferee
would get title to the house situated in the property, unless the house is specifically excluded
from the transfer."

Jagdish v Mangal Panedey 14

Could held that nature an intention are to be seen to determine whether it is movable or
immovable . In case of tress or to let it remain attached to the earth and in the former case ,it will
be deem as standing timber while in the latter it remain immovable property.

MEANING OF THINGS EMBEDDED IN EARTH

12
https://www.lawctopus.com/academike/understanding-term-benefits-arise-land/
13
FAO.No.292 of 2008
14
AIR 1986 All 182

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It includes such things as a house building ,well etc however certain thing like an anchor
embedded on the land to hold a ship or a shovel is not an immovable property because that is
inserted into the mud for a short period of time.

To determine such things are movable or immovable property, depends upon circumstances of
each caseand there are two main condition to indicate intention:

1)degree of annexation:

It means that when the removal of any property annexed or embedded will not cause harm to the
land. If it does a use, then it will come under the ambit of immovable but it does not and can
easily be detached , it will come under movable property.

Example

A) An anchor imbedde in the land to hold a ship or a shovel can easily be deache dwithout
harming the land. Hence its a movable proprty.

B) seats cemented in the garden are immovable property because during their removable would
harm the land.

2)object of annexation

If the object of annexation or embedding the property is for usage for a long period of time.

Example

A) if a tenant for life attaches bolts to tighten any object in home it will comes under
immovable because the intention of it is to use it for a long period of time.

Meaning of things attached to what is so embedded

In indian law movable property sometimes assumes for legal purpose the character of immovable
property. The things embedded on earth or attached to what is so imbedded for a permeate
beneficial enjoyment of that to which it is regarded as immovable property when a property is
traded as fixture any dealing with the property to be valid should conform to legal requirements
laid down for such dealing of immovable property. Thus a house becomes a part of a land on
which it stands and anything affixed to the building is by common law treated as addition to the
property of the owner .

Suppose a sells his house. The fixtures appertaining to the house passes along with the house and
need not be separately mentioned in the sale deal. They are treated as part of immovale property
sold. So a cannot remove the doors and windows after he sold the house . He may however
remove the showcase, boxes and bookracks for these are movable property.

MEANING OF CHATTEL ATTACHED TO EARTH OR BUILDING:

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A chattel means a movable property is attached to earth or building, which has become
immovable property. The degree, manner, extent, and strength of attachment are the main
features to be regarded in determining whether the chattel is movable or immovable property.

The court held that the intention of the party fixing the equipment should be considered. Whether
the intention was to have the equipment permanently or temporarily. This depends on – whether
the immovable property is his own or is taken on rent or lease.15

STANDING TIMBER

In Sukry Kurdepa v. Goondakull16, the court explained the meaning of the term movability. It
held that “when a thing cannot change its place without injury to the quality of which it is, what
it is, it is said to be immovable.” Therefore trees will be immovable as long as they are attached
to the earth. When these trees as severed from the earth they become movable property. Standing
timber are trees like teak, neem, bamboo etc.which are used for building houses, ships etc When
such trees are severed from the earth they can be sold and used for multiple purposes. Trees such
as orange trees, mango trees cannot be called as movable as they are grown for enjoying the
fruits and not utilizing them as timber. Only those trees which can be utilized as timber are
termed as immovable. Growing crops such as wheat, rice, sugarcane etc. Are also movable as
they are grown to enjoy their final produce. These crops have no value when they are attached to
the earth. Similarly, grass can only be used as fodder for animals. They do not have any value
when they are attached to the earth.

Standing timber’ is different from a ‘timber tree’.

• Standing timber – tree in such a state that of cut, it could be used as timber. Movable property.

• Timber tree – tree drawing sustenance from soil. Immovable property • Growing Grass –
movable property

• Right to cut the grass – immovable property (it is a right arising out of immovable property)

DISTINGUISH BETWEEN MOVABLE AND IMMOVABLE PROPERTY

Immovable

1. 1. Includes land, benefits to arise out of land, things attached to earth (sec. 3 of general
clauses act) 2. If the thing is fixed to the land even slightly or it is caused to go deeper in
the earth by external agency, then deemed to be immovable

3. If purpose of annexation of a thing is to confer permanent benefit to land, then immovable

property

15
Duncans Industries Ltd. v. State of UP (2000 1 SCC 633)
16
(1872) 6 Mad 71

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 4. Eg. Hereditary allowances, right of way, ferries, fisheries, right to collect rent and profits
out of immovable property, right to cut grass for one year.

Movable

1. Includes stocks, shares, growing crops, grass, things attached to or forming part of land,
and which are agreed to be severed before sale, or under the contract of sale (sec. 2 of sale of
goods act)

2. If the thing is resting on the land merely on its own weight, presumption is that it is
movable property, unless contrary is proved.

3. If purpose is to only enjoy the thing itself, then it is movable property, even though it is
fixed in the land

4. Eg: right to worship, royalty, decree of sale of immovable property, decree for arrears of
rent, standing timber, growing crops, grass.

Transfer Of Immovable Property

Section 54 further lays down the manner in which a sale of immovable property should be
effected. In case of tangible immovable property of value rupees hundred and upwards or in
case of reversion or any other intangible thing, a sale can be made only by a registered
instrument. When the tangible immovable property is of value less than rupees hundred the
sale can be made by a registered instrument or by the delivery of the property. The delivery
of a tangible immovable property is said to have taken place when the seller places the buyer
or another person on the direction given by the buyer, in possession of the property.17

The subject matter of the transfer must be a transferable immovable property

When a property is transferred with an intention to sell the property to the buyer for a
consideration, the transfer of property includes the delivery of the property along with the
ownership rights of that property. The immovable property can be tangible or intangible.
Under section 6 a property of any kind may be transferred except the following-

1. A transfer of spes succession

2. The right of re-entry

3. Easement

4. Restricted interest which could be right to future maintenance

5. A right to sue
17
Transfer of Property Act 1882, section 54

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 6. Public office

7. Pension or stipends allowed to the military, air force, naval and civil pensioners of the
government

8. A transfer for an unlawful purpose or consideration

9. Statutory prohibitions on transfer of interest 18

The Official Assignee Of Madras vs Sampath19 the court held that when a mortgage is

executed by a heir is void eventhough the heir subsequently acquires the property as spes
succession. Hence a transfer of property subject to spes succession is void. 

CONCLUSION

The definition of immovable property is arrived at by combining the definitions given in transfer
of property act, general clause act and registration act. Immovable property are those which are
embedded on the land excluding standing timber.

Things included in immovable property a) A right to ferry. b) A right to way. c) Right to collect
rent of an immovable property. d) A right to catch and carry away fish. e) Hereditary offices i.e.,
office of a hereditary priest of a temple. f) Right to collect dues from holding a fair on a piece of
land. g) Right to collect lac from trees. h) Right of redemption of mortgaged property. i)
Reversion in property leased. j) A factory k) The interest of a mortgagee in immovable property.

BIBLIOGRAPHY

https://www.lawyerservices.in/VP-Fakrudheen-Haji-SO-Pareekutty-Versus-State-Bank-of-India-
A-Banking-Company-and-Another-2008-12-19

http://lawtimesjournal.in/concept-of-land/#_ednref5

https://www.lawctopus.com/academike/understanding-term-benefits-arise-land/

https://indiankanoon.org/doc/1345438/

https://www.slideshare.net/bhattitejinder/meaning-concept-of-immovable-property

https://thefactfactor.com/facts/law/civil_law/topa/immovable-property/2229/

https://www.slideshare.net/bhattitejinder/meaning-concept-of-immovable-property

https://en.wikipedia.org/wiki/Transfer_of_Property_Act_1882
18
Transfer of Property Act, section 6
19
AIR 1933 Mad. 795

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https://www.legalbites.in/law-notes-property-law-definitions-immovable-property/

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