Transfer of Property

Topic 1.
Movable and Immovable property
 We are here …
1. Movable and immovable property
2. Attestation and notice
3. Actionable claim
4. Transfer of property
5. Restraints on transfer
6. Rule against perpetuities
7. Vested and contingent interest
8. Doctrine of election
9. Sale of immovable property
 Relevance
• Like I told in the introduction, TP Act governs
only the transfer of IMMOVABLE properties.
• MOVABLE properties are governed by Sale of
Goods Act.
• Hence, there is a need to understand what is
movable and what is immovable property and
the ways to distinguish them.
• Relevance to exam - I really do not know!
• Wherever the word “Act” or “TP Act” has been
used, it is to be understood as Transfer of
Property Act, 1882
 Property
• Not defined in TP Act
• When we examine the Act, we realise that the
word has been used in the most widest and
generic sense.
• Property denotes
– Every kind of interest or right
– That has an economic content
• Property broadly classified into
– 1. Movable property
– 2. Immovable property
 Immovable property
(TP Act deals only with this)
• TP Act doesn’t define immovable property
• Sec. 3 lays down “immovable property”
does not include
– Standing timber
– Growing crops or
– Grass
• Sadly, what is “included” as immovable
property is not defined!
• So, what do we do now? :/
 Indian Registration Act
• Immovable property includes:
– Land
– Building
– Hereditary allowances
– Right to ways
– Lights
– Ferries
– Fisheries
– Any benefits to arise out of land and things attached
to earth, but not standing timber, growing crops or
grass (here, they meant the normal grass!)
 General Clauses Act, 1897
• According to Sec. 3 (26) of General Clauses Act,
“immovable property” shall include:
– 1. Land
– 2. Benefits to arise out of land
– 3. Things attached to the earth or permanently
fastened to anything attached to the earth

• These above three elements will be expanded

and studied. Definition of Registration Act also
will be used to give completeness.
 1. Land
• Land includes
– 1. Earth’s surface
– 2. Earth’s surface covered by water
– 3. Column of space above the surface
– 4. Ground beneath the surface
 Land also includes

• Above the surface:

– Objects placed by human agency with the
intention of permanent annexation
• Eg: buildings, fences, walls

• below the surface:

– In its natural state
• Eg: Minerals
 2. Benefits to arise out of land
profits a pendre
• Every benefit arising out of immovable property
• Every interest in such property

As per registration Act, benefits to arise out of land:

• Hereditary allowances
• Rights of ways
• Lights
• Ferries
• Fisheries
 Cases

Ananda Behera v. State of Orissa

(AIR 1956 SC 17)
– right to catch fish from Chilka lake, over a number of
years, was held to be an equivalent of a benefit to
arise out of land

Shanta Bai v. State of Bombay

(AIR 1959 SC 532)
– right to enter land, cut and carry away wood over a
period of twelve years was held to be immovable
property. The right to collect lac from trees is also
immovable property.
 3. Things attached to earth
(Doctrine of fixtures)
• Sec. 3 of TP Act defines “attached to
earth” as including:
– Things rooted in the earth
– Things imbedded in the earth
– Things attached to what is so imbedded
– Chattel attached to earth or building

(Chattel - movable property)

 Making it clear
• Things imbedded in the earth
– Eg: a building

• Things attached to what is so imbedded.

– Eg: a fan. It is not directly attached to earth. It is
attached to the building. And the building is imbedded
in the earth. Since the fan is attached to the building
that it attached to the earth, fan is also an immovable
property.
– Similar to the joke where the student tells the teacher
that the teacher’s daughter loves the teacher, the
teacher loves the student and hence it is to be
inferred that the teacher’s daughter loves the student!
 Test
• How to determine whether any movable
property attached to the earth has become
immovable property?

• Two well established tests in English law:

– Degree / mode of annexation
– Object / purpose of annexation
 Degree / mode of annexation
This was the rule laid down in Holland v. Hoggson
• If the movable property is resting on the land
merely on its own weight, the presumption is that
it is movable property, unless contrary is proved.
– Eg. A brick resting on the land
• If it is fixed to the land even slightly or it is
caused to go deeper in the earth by external
agency, then it is deemed to the immovable
property, unless contrary is proved
– Eg. A machine fixed to the land by using screws (like
in industries)
 Object / purpose of annexation
Test:
• Whether the purpose was to enjoy the chattel (movable
property) ?
– Some crushed stones are deposited on a land, so that it can be
transported elsewhere in a few days. Here, the intention / object
is not to keep the stones permanently. They are to be enjoyed
independently of the land on which they are deposited.
• Or to permanently benefit the immovable property ?
– Some blocks of stones are placed one above the other without
using cement, but in a manner that it stays strong and acts as a
wall and prevents cattles entering the land. Here, the intention is
to make a wall out of the stones. It becomes a part of the
property. It benefits the property by protecting to the property.
 Intention is important

• One more rule:

– House owner fixing a fan is permanent. It is deemed
that when the owner of a land does some fixture, he
intends to retain the fixture indefinitely.
– Tenant fixing a fan is temporary. He will surely
remove the fan whenever he vacates the house. It is
deemed that when the tenant of a land does some
fixture, he doesn’t have the intention to have the
fixture forever.
 Some leading cases
• Shanta Bai v. State of Bombay (AIR 1958
SC 532)
• State of Orissa v. Titaghur Paper Mills Co.
Ltd. (AIR 1985 SC 1291)
• Ananda Behera v. State of Orissa
• Firm Chhotabai Jethabai Patel & Co. v.
State of MP
 We have just finished immovable
property part (recap)
1. Land
– Earth, below, above etc

2. Benefits to arise out of land (profits a pendre)

– Benefits and interest

3. Things attached to the earth or permanently

fastened to anything attached to the earth
– Test to determine (doctrine of fixture)
• Degree / mode of fixation
• Object / purpose of fixation
 Movable Property
• TP Act doesn’t define “movable property”.
• General Clauses Act: “property of every description
except movable property”

• Examples:
– royalty,
– machinery not attached to earth,
– a decree for arrears of rent,
– government promissory notes,
– standing timber,
– growing crop,
– grass
 Cases
• SPKN Subramanian Firm v. M. Chidambaram
(AIR 1940 MAD 825)
– “oil engine” (generator) was fixed by defendants using
nuts and bolts in a cinema hall for generating
electricity. The machine was pledged by way of
security bond. Whether the machine is a “movable” or
“immovable” property?
– Defendants had taken the premises on lease. Hence,
they never had the intention of making the machine a
part of the immovable property. The machine (oil
engine) was held to be an immovable property.
– Principle: intention of the party fixing it. Whether
permanent or temporary.
 Case
• Bamadev Panigrahi v. Monorama Raj (AIR
1973 AP 226)
– Cinema equipments like projector, diesel
engine etc, installed on the tenanted land
temporarily, are movable properties.
– Even if the equipments were fixed strongly,
the land was taken on mortgage. Hence, we
can infer that the equipments will be fixed only
till the terms of mortgage lasted.
 Case
• Duncans Industries Ltd. v. State of UP
(2000 1 SCC 633)
– Again, 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.
Distinguish between movable
and immovable property
 Movable
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
Immovable
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.
 Movable
3. If purpose of annexation of a
thing is to confer permanent
benefit to land, then
immovable property
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.
immovable
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.
 Clarifications
• ‘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)
The contents of this file have been compiled from various
reliable sources. Due care has been taken to avoid
errors. The author of this work takes no responsibility for
the consequences arising out of error. The reader is
advised to cross check with the text books and the Act in
case of confusion. You are allowed to share this file with
your friends without making changes to the contents of
this file. However, you are not allowed to exploit this
work commercially.

- Gagan K.
University of Mysore
gagan555@gmail.com