UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

TOPIC : Movable and Immovable Property under Section-3 of Transfer of Property Act

SUBJECT : LAW OF PROPERTY

Under the Supervision of : Made By :

Dr. Anju Choudhary Rishabh Kumar, 266/17

Semester-7, Sec-D
B.Com.LL.B.(Hons.)
 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

Acknowledgement

The success and outcome of this project has required a lot of guidance and assistance and I am
extremely privileged to have got all this all along the completion of my project. All that I have done
is only due to such supervision and assistance.
I respect and thanks Dr. Anju for providing me with an opportunity to do project wok and giving
all the support and guidance which made me complete this project duly. The project just not proved
to be a part of the syllabus but also taught me about the ground realities of the execution of law. .
This project has helped me understand the ground realities about the law with latest case judgments.
With the gratitude of my professor I am able to go through the ground realities and subsequently
have learned this topic for the rest of my life
 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

TABLE OF CASES
1. Anant Behra v. State of Orissa

2. Babu Lal v. Bhawani Das

3. Fatimabibi v Arffana Begum

4. Kapoor Construction v. Leela Nagraj & Ors.

5. Shanta Bai v. State of Bombay

6. Sukry Kurdepa v. Goondakella

7. TA Sakuni v. BJ Phillips
 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

INDEX

i) Acknowledgement
ii) Table of Cases

1. Introduction………………………………………………………………………..Page 01
2. Immovable and Movable Property………………………………………………...Page 02
3. Conclusion………………………………………………………………………….Page 05

iii) Bibliography
 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

1. Introduction : The Transfer of Property Act is one of the oldest Act. Property is a very
wide term and would include anything which carries some value and over which the right of
ownership can be exercised.
The word property is one of the most extensively used and in it’s most comprehensive sense
includes all legal rights of a person except his personal rights, which constitute his status or
personal condition1.
The transfer of property Act, 1882 mainly deals with the transfer of immovable property. It
does not apply to transfer by “operation of law” such as transfer of immovable property
necessitated by the Order of the Court for insolvency or forfeiture among others.

2. Immovable and Movable Property under Section 3 : “immovable property” does not
include standing timber, growing crops or grass;2
The interpretation clause of Immovable Property states that immovable property does not
include “standing timber” , “growing crops” ,or “grass”. Hence the definition under this
statement is not exhaustive as it clearly does not explain all the things as demanded.
For the interpretation of definition of the immovable property under law we will refer to the
General Clauses Act : “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

In the case of Sukry Kurdepa v. Goondakull4 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

1
Raichand v Dattarya AIR 1964 Bom 344
2
Section 3 of TPA
3
Section-3(26) of General Clauses Acct, 1897
4
(1872) 6 Madras 71

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 UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERISTY, CHANDIGARH

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.

Hence we will now combine the definition of “Immovable Property” as given in Transfer of
Property Act and General Clauses Act for a clear definition of what immovable property
includes? Immovable Property includes “land”, “benefits to arise out of land”, “things attached
to earth” except “standing timber”, “growing crops” or “grass”.

In Babu Lal v Bhawani Das & Ors.5 It was held that the definition of immovable property
given in the General Clauses Act is applicable to the Transfer of Property Act.

Now we will dissect the terms “land”, “benefits arising out of land” and interpret it for the
cause.

2.1 Land : Here the expression “LAND” does not solely refer to the upper surface which is on
the earth. Rather, it refers to each and every layer of the earth. Hence the crust of Earth and
every layer of it is covered under the definition of “Land” when counted for immovable
property.
Eg. : Minerals of the land, well attached to earth, pond or even a lake.

2.2 Benefits arising out of Land : All the benefits and perks arising out of land are also
observed under the context of “immovable property”. The benefits arising out of land are
further categorized as :
(i) Things rooted in the Earth.
(ii) Things embedded in the Earth.
(iii) Things fastened to or things embedded for it’s permanently beneficial or enjoyment.

Before we under stand the concept further we will understand a legal maxim “profit a
prendre”enables a person to take part of the soil or produce of land that someone else owns. It
is a right to take from the land, as in the mining of minerals and is, therefore, distinguishable
from an easement, which is a non possessory interest in land generally giving a person a right
of way on the property of another.

5
15 Ind Cas 32

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Anant Behra v State of Orissa6 : The right to profit IE “profit-a-prendre” the benefits arising
out of the land are immovable
A person who was catching the fish from the lake. The Hon’L Supreme Court held that in this
case that the authority for fishing comes under the purview of “immovable property”. The
pond/lake is an integral part of the land and hence the person enjoying the “benefit which is
being arisen out of the land” will be considered as Immovable Property.

Shanta Bai v. State of Bombay7 : Based on the previous judgment of “Anant Behra v St. Of
Orissa” the Apex Court held that the right to enter upon land to cut tress is the “benefit which
is arising out of the land” hence comes under the purview of Immovable Property as defined
and interpreted in Section 3 of Transfer of Property Act, 1882 and Section-3(26) of the
General Clauses Act, 1897.
In Kapoor Construction v. Leela Nagraj & Ors.8 the Hon’L Karnatka High Court observed
that when anything is annexed or attached to earth the most important test to determine the
property as immovable or movable property will be done through the “objective, intention, the
purpose, mode of annexation and the degree of annexation.”

TA Sankuni v BJ Philips9, in this case the Hon’L High Court went one step further to define
and interpret the meaning of the trees planted in LAND. The Court held that if the “intention”
of planting the tree is to cut them for the purpose of utilising them as “Timber” and not to use
them for the purpose of “enjoying their fruits” are considered as “movable property”.

For the purpose of interpretation of expression “timber” it was explained that “standing
timber” includes those trees which are cultivated with the purpose for the usage of the wood of
the trees as for neem, babool,bamboo, oak, peepal tree etc. On the other hand the trees which
are planted for the purpose of the collection of fruits such as Mango, Guava, Jackfruit will
considered as immovable property because “benefit is being arisen from land” and the roots of
trees are deep inside the land, as observed and cleared in Fatimabibi v Arrfana Begum10.

6
AIR 1955
7
AIR 1958 SC 532
8
AIR 2005 Kant. 302, 2005(5) KarLJ 602
9
AIR 1972 Madras High Court 272
10
AIR 1980

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A tree planted for the purpose of using it’s fruits will be termed as immovable property but a
tree with the intention of using it’s wood will be termed as movable property.

(I) Things Rooted in Earth : Things rooted in earth refers to the plants, trees which are being
rooted inside the earth.
(II) Things embedded in Earth : The “foundation of a building” which is embedded to the
Earth.
(III) Things fastened to or things embedded for it’s permanently beneficial or enjoyment : The
building which are fastened to the things embedded with Earth, such as the building on the
foundational base, the door and windows attached.
The decorative items attached to the immovable property will not be counted as immovable
property and rather be called movable property eg. : Jhoomar

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3. Conclusion : In the end we can conclude that the “immovable property” is all which is
attached or imbibed to earth except for standing timber, growing crops and grass. The
definition is not exhaustive in nature as it does not prima facie explain the definition of the
same. Hence we referred to General Clauses Act for it’s better interpretation.
The Immovable Property definition has been interpreted through various judgement and hence
have gained more clarity. The standing tree which is planted, is it produces fruit is included as
immovable property whereas a tree to collect it’s wood is movable property. In case a tree is
used for both the purposes then the intention to plant such tree is determined to understand the
property as movable or immovable.

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Bibliography

1. http://lawtimesjournal.in/
2. https://indiankanoon.org/