REFERENCES ACKNOWLEDGED a Q@) @ @ © © n ® ° (0) an @ay a3) a4) as) a6) an Malla: The Transfer of Property Act, 11th Edn., 2013. Mitra & Sengupta: The Transfer of Property Act, 20th Edn., 2012, Dr. Poonam Pradhan Saxena: Property Law, 2nd Edn., 2011. Dr. Avtar Singh: Textbook on Transfer of Property, 3rd Edn., 2012. ‘S.N. Shukla: Transfer of Property Act, 28th Edn., 2011. Dr. G.P. Tripathi: Transfer of Property Act, 17th Edn., 2011. Dr. R.K. Sinha: The Transfer of Property Act, 13th Edn., 2012, G.C.V. Subba Rao: Law of Transfer of Property, 7th Eda., 2012, ‘Vepa P. Sarsthi: Law of Transfer of Property, Sth Edn,, 2005. Dr. TP. Tripathi: The Transfer of Property Act, 2nd Edn., 2011 HLN. Tiwari: Transfer of Property Act, 4th Edn., 2005, Manohar & Chitaley: The Transfer of Property (3 Vol.), 7th Edn., 2007. Sohoni: Transfer of Property Act, 4th Edn., 2012. Dr. S.K. Awasthi: Property Law of India; Ist Bdn., 2012. Mal Law relating to properties in India; Ist Edn., 2010. Faculty of Law, Delhi University: Cases and Materials on Transfer of Property Act Question Papers: Delhi University and Judicial Services Examina- tions. ey) Chapters DETAILED CONTENTS Pages 1, MOVABLE AND IMMOVABLE PROPERTY Concept of Property iL Immovable Property .. 3 Benefit Arising Out of Land 6 English Concept of Profit a Prendre . 8 Leading Case Laws .. 10 Things attached to Earth. 18 ‘Things Rooted in the Earth 19 ‘Things Embedded in the Earth ‘Things Attached to what is so Embedded .. Doctrine of Fixtures (English Law) . tate Leading Case Laws : ry 28 Movable Property no 36 Actionable Claim 36 Standing Timber... 3T Distinction between Standing Timber & Timber Tree... 39 Growing Crops ae son 40 Distinction between “Movable” and ‘Immovable’ Propeny 4 2, ATTESTATION Importance and Object of Attestation. 4 Meaning and Definition of Attestation . 46 Difference between English and Indian Law. 7 Requisites of a valid Attestation . 48 ‘Animo Attestandi (Intention to Attest. 9 Leading Case Laws .... SI Who may be a Competent Witness sa Leading Case Laws 56 owo Chapters Pages Modes of Attestation beat 57 Leading Case Laws 61 3. DOCTRINE OF NOTICE Meaning of Notice Object and Importance of Notice Actual or Express Notice Wilful Abstenion from an Enquiry as Constructive Notice Gross Negligence as Contractive Notice . Leading Case Laws Registration as Constructive Notice Actual Possession as Constructive Notice Natute of Possession (Actual Possession) a Exclusive or Substantial Possession (Not Partial Possession) ......81 “Leading Case Laws pate 83 Notice to Agent a5 Constructive Notice .. 91 4. TRANSFER OF PROPERTY (Section 5) Introduction 95 Scope of Act Scheme of Chapter 2... : Definition of “Transfer of Property” Property co so OT ‘A “transfer of property” is an act of conveyance . so 103, Conveyance is effected between Living Persons... see 18 Property is conveyed to (a) one or more other living person (b) to himself... sme OS Transfer/Conveyance may be in present or in future. 106 Transactions Amounting to “Transfer of Property” sn. 106 ‘Transactions not amounting to “Transfer of Property’ 1108 Leading Case Laws na i Chaprers Poges 5. TRANSFERABLE PROPERTY [Section 6(8) and 43] Chance of an Heir Apparent Chance of Obtaining a Legacy... “Any other mere possibility of a like Nature : ‘Transfer by Unauthorised Person (Section 43) ... Essential Requisites of Section 43 Leading Case Laws Questions with Answers 6. CONDITIONAL TRANSFERS (Conditions Repugnant to Interest Created) (Sections 10, 11, 12 & 40) Introduction. . Condition Restraining Alienation (Seetion 10) . Absolutely Restraints the Transferec. Partial Restraint... 158 159 161 163 Exceptions to Section 1 164 Interest Deteroahle on Insolvency ot Auenpred Alleation (Section 12) 166 Restriction Repugnant to Interest Created (Setion 11) 167 Distinction between Section 10 and Section 11 168 Exeption to Section 11. Restrictive and Contractual Covenants. Scope of Section 40 .. Leading Case Laws .. im 72 173 11 7, RULE AGAINST PERPETUITIES (Transfer for the Benefit of ‘Unborn Person) (Sections 13 to 18, 20 & 22) Introduction .. 193, “Transfer for Benefit of Unborn Person (Section 13).. 194 Rule against Perpetuity (Section 14) 199 Rule against Perpetuity: Indian Law... 200 |(wit) Chapters: Pages Extent of Perpetuity Period. 203 Exceptions tothe Rule against Perpetiis on so 206 Creation of Interest in Favour of a Clas (Sections 15 & 22) vo. 209 ‘Transfer when Prior Interest Fails (Setion 16) .. Direction for Accumulation . ‘Transfer in Perpetuity for Benefit of Public (Section 18) 216 Leading Case Laws 219 8. VESTED AND CONTINGENT INTEREST (Sections 19 and 21) 226 226 Salient features of Vested Interest 229 Contingent Interest 233 Saliont Features of Contingent interes Leading Case Laws .. Bd 239 9, TRANSFER DURING PENDENCY OF LITIGATION (Rule/Doctrine of Lis Pendens) (Section 52) Concept, Meaning and Nature of the Rule/Doctrine of Lis Pendens orcs o 245 Basis and Scope of Doctrine 246 Essential Condition for Application of Section 52. 249 Pendency of Suit or Proceeding . 1-250 Pendency in a Court of Competent Jurisdiction 253 Suit or Proceeding must not be Collusive....n- sees 24 A right to “Immovable Property must be in Question” ....0.n-~ 255 Property Transferred or otherwise dealt with by any Party of Suit 256 ‘The Transfer must affect the Rights of any Other Party to Suit...258 Involuntary Transfers... 259 Leading Case Laws 260 10, MORTGAGES (Chapter 4: Sections 58 to 104) Introduction... 278, Dei tion and Essentials of a Mortgages 216 ®) Chapters Pages Essential Elements of Mortgage .. an “Mortgage v. Other Transactions + Mortgage v. Sale. 219 + Mortgage v. Lease ... 280 + Mortgage v. Pledge 1286 + Mortgage v, Lien . 280 + Mortgage v. Charge .. 286 Kinds of Mortgage .. ESC erat eee 2 simple Mortange [Section 5805) ewsnssen f 281 Mortgage by Conditional Sale [Section 58(6)] «sn 283 Usufructuary Mortgage [Section 58(4) sos Ect oa English Mortgage [Section 58(e)}.. roa 239 Mortgage by Deposit of Title Deeds (Section 58D] 290 Anomalous Mortgage [Section $8(8) .avneun 292 Formalities for Creating a Mortgage (Section 59)... 298 Rights of a Mortgagor... Right of Redemption (Section 60) . Persons who may redeem (Section 91).. 298 ‘Clog on Redemption ee E900. Foreclosure of Mortgages (Section 67) 304 Leading Case Laws .. 307 294 295 I, LEASE AND LICENSE (Sections 105 & 106, TPA; Section 52, Indian Easement Act, 1882) Definition of Lease (Section 105).. Essential Elements of a Lease ovnnn “Types of Lease (Section 105 and 106). Lease for a Specific Time . Periodic Leases... 326 Leases in Perpetuity Lease and Licence: Distinetion .Chapters 2 @ Pages 336 337 Distinction between Lease & Licence Leading Case Laws GIFT (Sections 122-129) Definition of Gift under T.P. Act Essentials of a Valid Gi... Transfer of Ovmership . Subject-matter of Gif: Existing Property. Without any “Consideration” : 361 363 363 364 Competent Donor 365 “Made Voluntarily” ones 3166 Acceptance of Gift Leading Case Laws 7 Mode of Execution of Gift (Section 123)... Leading Case Laws 367. 370 374 378 380 386 389 penne 393 nese 395; Suspension or Revocation of Gifts (Section 126) Leading Case Laws ‘Onerous Gifts (Section 127) Universal Donee (Section 128) a Gift in Contemplation of Death (Section 129) TABLE OF CASES ‘Barwick & Co ¥ Price 1 C-Cheviathanv.P. Nesyanan 26 ‘Chinnaswamn Maas v. Raja Las... #1 (CIT v.Panbari Tea Co ‘329 Callasivev.Freudulent | Cu 388 DLV. D’souza v. Antonio Ferandes 341 Dia ¥ JOM reverence $8 Duncans industes Lid v. State of UP aki Ibrahim v. Fuki Glam. ‘Ganga Baksh v. Mado Singh Mas ‘Ganga Dhar v, Shankar Lal 307 ‘Gangaba v. Mahagundapps nn0 Gizehar Singh v. Megh Lal coe Girjesh Dut. Osa Din 197,212 Gigja Bed v.Sadashiy Dunia) 0 NS Gigja Dt. Gangoer 30 ‘Goraathi Amal v. Krishna yer. 55 ‘Goratiba ¥. Mute vcrvsoorn 37S Govinds Pll v. Aiyyeppan Krishnan... 264 HIN, Nerayenaswammy Nadav, Sot Kumar Harish Chandra v. Bansichar "Mohanty 55,56 ‘Keppuewarav. Arumugar co [Lads Kunden Lal v. Mat Mushrafi Begum —. 61 (ali deh v, Kalidas Deveband..oenoo ATS Leigh v. Taser... ne 26 Liyod Beaks Lid. v/PE Guader & Co. MK Una y. PP. Anna . 80 (MN. Clubwealav.Fida Hussain Sabb. 335 “Manohar Shivam v. Mahadeo Siva 161,181 ‘Maqbeot Als v. Khadaj. Ma: Mustafa v, Haji Me Ma. Mustafa v. Haji Md Md. Raja v.Abbes Bandon ‘Mere Possibility v. Feeding the Estppel... 148 ‘Mises Lal v, Jagannath a6 Mohammed Raza v. Abbas Bandi Bib 162 ‘Mohar Singh v. Devi Charan us ‘Mol Raj v-Jarana Devi eed “Moreshwarv. Datta 0 Mortgage v. Other Transactions 29 Manni Matto v. Chandeshar Maio 364 1. Ramaiah . 8, Nagaa) fen BB «io | | | | | | | i |Gi, NC. Bhatia v. Gandevi Peoples Co-operative Shetammalv, Hasan Khan... 16 Bank Li. wevsnssnnnnineaneveene 251 Sham Sunder Singh v.Jagzanh Singh 50 Negubal . Sbiza Ram no 254. Shivdey Singh v. Sacha Sing 312 (Narayan y. Jen 26. Sita Ram Prasad. Mahadeo Rai 277 ‘Nati Singh v. Anse. 283. Sivakoti Dasarndharam , Siva [National Bank v. Paul Himiton Joseph. 81 Yogandien 8s ‘Padarath Halwa v. Ram Narain... 60. Smith. Bene svssvsevvssennonsnnees 213 Pandurang v, Marandey 50. Seat Cham. Sm Naresh Kamar. 363 Panna aly Flea... “392 Sim Keer, Kewal Krichns 310 Perumal Necker v. Ramaswary 24 Sonepal . Veer nnesn im Pomal Kagjv. Vela Purchit.."319- ‘Sri Jagenath Mabapeea Priv Pratap Bahidr, Garcon 289 Quay Cut Piece ¥.M. Lac! Co." 348 Kempe. Burton & Son. 332 R Rempra|. Mis Barton & Co, 207,220 RK Moanined Ubi .Hajce Abi Wahab... on u ‘Rephuram ao atiag onan 165 Raju Bajrang Baader Singh Thakur ‘Baal Kier ree 29 Raja Ra Bahar Singh Satangi Singh 231 Rijapalce + Femando, 19 Rajendra Singh. Santa Sigh 257 Rajah emis Roy St Se 234, 235,239 20%, 222 236 a 205,219 ‘Rani Chars Kumari v. Mob Bikram...” 102 Reo Ganga Singh v- nstr Singh. 61 Senger Dhulay. Shah Laxmiben 00 314 Sankar Ammaly. Ramachandra, 141 Senta Bai v. State of Bombe... 7,10, 19,38 Secoi Cetin v. Santa ee 20 ‘Seth Ganga Dhar. Shankar Lalo 303 ‘Shashi Kanth v.Pramoge Chandra. 238 Coats. ve smenee 271 Sri Narayan Chana Sa 9, Dipli Mejec us Sti of AP Y. NTPC Lib econo a ‘State of Orisa v. Titan Paper Mills Co. Lid. r.. 3,13,39 Stookey ¥ Panon 130 ‘Subrabmainan Firm v. Chindambaren 27 ‘Selay Keeps. Goowvall nec 4b Sunde Bib. Rajeosra Nein 231 Soni Siherthbhelv- CIP 104 ‘Supreme General Filn Exchange Lid. Brijmth Singh Deo ... 7 260, ‘Surendra Kurt, Mathai Suresh Chand v. Kundan. ‘Suresh Singh v. Sats of Bihar y TeMamne ¥.K Rath vernon 107 ‘Texas Co. v. Bombay Bening Co... 93 ‘Thaker Rephunathv. Ramesh Charis 383 Ta BevaY. MER Bev nn nnn 388 ‘Tikdhrlv. Khodan Lal, 75 Tilkahee . Khedanil 40 Tota v. Bir 33 Talk. Mexhay 191 nT) Umesh Chander v. Me. Zahoor Fatima... 231 VN. Sarin v Ajit Kumar Popa oe 1 Vincent. Jospine... m Yeshwaniv Vth 288 Zab Begum v Lal Abed Klan 13 ‘Zoroasian Coop Housing Society Li. v. District Rexists, Coop, Societies UID) cence CHAPTER 1 MOVABLE AND IMMOVABLE PROPERTY Important Points/Issues and Case Laws (1) Concept of Property @) Definition of Movable Property. (8) Definition of Immovable Property. (4) Meaning of “Things attached to Earth”. () Concept of “Doctrine of Fixtures” (6) Distinction between Movable and Immovable Property. CASE LAWS (@) AIR 1958 SC 532: Shantabai v. State of Bombay. 2) AIR 1985 SC 1293: State of Orissa v. Titaghur Paper Mills Lid (3) AIR 1974 AP 226: Bamdev v. Manorama. (4) 2000) | SCC 633: Duncans Industries Ltd. v, State of UP. CONCEPT OF “PROPERTY” ‘The word ‘property’ is a term of broad and extensive application and is also a term of large import. It is employed at different times to express many varying ideas, and its meaning is not and cannot be fixed and unchanging. ‘The term may have different meanings depending on the connection in which, and the purposes for which, itis used, as indicating the intention of the parties, or the proper construction or application of constitutional or statutory provisions. ‘The meaning of the term must be gathered from the then Prevailing concepts as reflected by contemporaneous construction. It may have a meaning sometimes broad and sometimes restricted Section 6, TPA stipulates that property of any kind may be transferred But the Act neither defines nor deals with all kinds of property. Many other Statutes (Constitution, CPC, Insolvency Actete.) also use the word “property” but do not give an exhaustive and comprehensive definition. Basically itis2 Property Law neither feasible nor possible of doing so because every kind of interest or right which bas an economic content is included under the term “property”. The word “property” is a most comprehensive term, descriptive of every possible interest in a thing which a man can have or possess. It includes everything which may be owned and have a value. It denotes: (1) tights in the nature of ownershi @) rights of exclusive possession and enjoyment short of ownership; and (3) merely rights, which do not involve possession, though they may involve a use (as a right of easement). ‘The legislature has not attempted to define the word “property”, but it is Used in the TPA in its widest and most generic legal sense. “Property” may ‘mean: (a) the corpus or the concrete thing, or (b) the owner's right or interests therein, The Act uses the word ‘property’ in the latter sense. In this sense, the word ‘property’ includes not only the corpus or the concrete thing which is the subject-matter of ownership but also all acts of dominion (absolute or partial ownership) which a man may exercise over a conerete thing. That is why a possessory right is treated as property, even though the person in possession is not the owner. In common parlance property is the total wealth of a person. But in legal sense itis the most comprehensive of all terms which can be used inasmuch as it is indicative and descriptive of every possible interest which the party can have, [tis used in this dual sense of the thing and the right of the thing in Section 54, TPA which contrasts, ‘tangible immovable property” with “areversion or other tangible thing’. In English real property law, the distinction between tangible and intangible things is expressed as corporeal and incorporeal hereditaments. Property includes rights such as trademarks, ‘copyrights, patents and personal rights capable of transfer or transmission, such as debts Interests in Property: Absolute ownership is an aggregate of component’ subordinete rights such as the right of possession, the right of enjoying the usuffuct of the land and so on. These subordinate rights, the aggregate of which make up absolute ownership, are referred in the: TPA ag interests in property; and in English law, real rights. Thus it is clear that as ownership consists ofa bundle of rights, the various rights and interests may be vested in different persons, e.g. a mortgagor and a mortgagee, a lessor and a lessee. The interest ofa member of joint Hindu family in joint family property is property and not a mere possibility. Indeed vested remainders and contingent interests are distinguishable In law from a mere possibility. Movable and Immovable Property 3 ‘They both are property and are transferable. A minor's right to challenge an alienation of a property by his guardian is a vested right in property and is heritable and transferable, if the minor has exercised his option to repudiate the transaction. A vested remalnder is an interest granted out of the original state at the same time as, but in succession too, a precedent interest. A ‘reversion is the residue of an original estate which is left after the transfer or devise of a smaller estate. The interest of a lessor is a reversionary interest Deflaition of “Property” In a summary form, the expression “Property” can be defined to be “the unrestricted and exclusive right to a thing; the right to dispose of a substance ofa thing in every legal way; and to use and exclude everyone else from interfering with it.” IMMOVABLE PROPERTY? +02.030005 For the sake of convenience and to understand its nature, property has been classified into a mumber of categories viz. tangible and intangible; real and personal; corporeal and incorporeal; movable and immovable property, ‘tc. Indian law (TPA) has adopted the division of property into movable and ‘Immovable, and not the technical division into real and personal property recognized by the English law. The Privy Council observed: “The term ‘immovable property’ comprehends certainly all that would be real property according to Englisit law and possibly more.” Thus, a leasehold land would be personal property in England but would be immovable property in this country. 1. Inthe absonce of a comprehensive definition of immovable property, how Would you decide whether the property is movabla or immovable? Stato the definkions and also the eltferent tts lie down by judesal precedents. | (OU, LLB, 2002} @.2. Comment: Thore is no comprehensive definition ofthe term "immovable. ropory" inthe TPA, 1882. Each caso haa tobe decided on ke own moti, [B.U., LL.B. 2018, 2003] 2.3. Sxamine crcl “Th defn of he tnt inmornis eee ‘TPA, 1882 is not exhaustive. Each case has tobe dacided on the basis of its facts and creumstances.” [D.U,, LLB. 2005] (2.4. What is tho importance ofthe distinction between movablo and immovable [.U.tLB, 0.5. Beko imovable propery. Describe what txts de woulapeeen determine whether a propery is os not an immovable property 1D.U., LLB, 2007, 2014)4 Property Law Importance of the Nature of Property ‘The TPA provides specific rules of procedure for transfer of immovable and movable properties. Movable properties may generally be transferred by delivery of possession; writing and registration is not essential. But immovable Properties are required to be transferred generally through written and registered document. Besides other things, the validity of transfer depends also upon the fact whether the procedure prescribed for that kind of property has been followed or not. Ifthe proceciure prescribed by the Act has not been followed, the transfer is void. For a valid transfer of property itis necessary, therefore, that fist ofall its nature (or kind) is definitely Inown so thatthe preseribed procedure could be followed. For example, under Section 123 of the Act, gift of an immovable Property must be made through registered document but the gift of movable property may be made only by delivery of possession. Accontingly, gift of a ‘ree (which is immovable property except where itis standing timber) is not lawful if itis made without a registered deed, But if the same tree could be proved to be a ‘standing timber’, the gift of such tree is valid even if itis ‘made without registration. Similatly, sale of intangible property (e.g. reversion) is valid only when it is made through a registered document. Definition of Immovable Property To understand the concept and content of the expression ‘movable property’ and ‘immovable property’, iis imperative to go through definitions ‘of these torms in various Statutes. These expressions have been defined under the T.P. Act, Registration Act and the General Clauses Act, 1897. Under the T.P. Act: This Act simply seys that “immovable property” does not include standing timber, growing crops, or grass. This definition is neither comprehensive nor exhaustive and only excludes certain things not falling in the domain of immovable property. It is not clear as to what it includes. In any Act, if the meaning of any word is not given clearly, the ‘meaning of that word may be found in the General Clauses Act, 1897, if given there. Under the General Clauses Act: Section 3(26) of the Act reads: “Immovable property shal include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.” This definition is also not exhaustive as it only illustrates what physical object cor things are included under the term “immovable property” and does not furnish an exhaustive test of what is, and what is not, immovable property. Under the Indian Registration Act, 1908: Section 2(6) of the Act reads “Imznovabie property includes land, building, hereditary allowances, right to Movable and Immovable Property ways, lights and ferries, fisheries or any other benefit to arise out of fand o” things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops or grass.” This definition amalgamates the concepts as given in TPA and General Clauses Act. Despite it this definition too cannot be said to be exhaustive. It is stl cenumerative but is certainly helpful in understanding the nature of immovable Property. ‘Complete idea of Immovable Property: The definition ofthe expression “immovable property” as given in the three Acts respectively iftaken together with the definition of the expression “things attached to the earth” in Section 3, ‘TPA makes it clear that immovable property includes: (1) Land, (2) Benefits to arise out of land, and (3) Things attached to the earth ie. (® things imbedded in the earth, (i) things attached to what is so imbedded in the earth, Gil) things rooted in the earth, excep»— (a) standing timber, (b) growing crops, or (©) growing grass ‘The Registration Act provides that certain incidents of property viz hereditary allowances, right to ways, lights, ferries, fisheries are immovable property. But these expressions are absent in the TPA. Nevertheless, thess incidents, by virtue of Section 8, TPA, may be brought within the expression “immovable property”. (A) Land ‘The term “land! in its legal meaning includes the following elements (i) a determinate portion of the earth's surface. Any ground, soil or earth, such as meadows, pastures, woods, moors ‘waters, marshes etc. ii) The ground beneath the surface i.e. sub-soil, minerals. coal or gold mines. (iv) The space column above the surface, (9) Anything fixed to the soil except those which ate produced in ths year by the labour of the year.6 Property Law (V1) All objects which are on or under the surface in its natural states: for example, minerals, land includes lakes, ponds and rivers within its boundary. They are called land covered by water. (vil) Allobjects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land sand lose their identity as separate movables for examples, building, walls and fences. Thus, and includes evergthing upon the surface of land, wniier the surface of land and also above the surface of land. Anything upon the land, so ong 4s itis not removed from there shall be part ofthe land as such is immovable Property. Thus, soil or mud deposited on the surface of earth would be immovable property. Water in pond, lake or pit and river is also immovable property (B) Benefits arising out of land (Profit a prendre). (©) Things attached to Earth (Doctrine of fixtures). BENEFITS ARISING OUT OF LAND®*° @rofit a prendre) Landmark Judgments of the Supreme Court (1) AIR 1956 SC 17: Anand Behera v, State of Orisa: Right to enter the lake and catch fish for a period of five years. (2) AIR 1958 SC 532: Santa Bal v. State of Bombay: Right to enter land, cut and carry away wood over a period of 12 years. ) AIR 1985 SC 1293: State of Orissa v. Titaghur Paper Mills Ltd.: Right to cut and remove bamboos which would grow from the soil for several years coupled with several ancillary rights. '@.6. With the help of docided cases, decide whether the folowing are movable ‘or immovable properties: [0.U., LL.B., 2000, 2002, 2008] (2) A right to catch fish in alako fora period of § years. Hint: This is en immovable properly because itis a bonefitto arse out of tan. (0) A right to catch fish for two hours. {€) Transfer ofa right to collect sand for 1 year from the river-bed. (@) A right to pluck/collect baedi (fondu) loaves fora pariod of 10 yoare from ‘forest. Hint: This isan immovable property because the tendu leaves will continuo to derive nutrition from tho soll over a period of 10 years. @. Discuss whether the following are movable or immovable property: (2) Transfer of aright to collect sand for 1 yaar from the sea-bed. (©) A right to work the mine and carry the product for 3 years. (©) Celing fan fixed by the tenant n the house. (6) Olt engine attached to land by mortgages of land, (0.U., LL.B., 2019] Movable and Immovable Property 7 Beneficial Interests/rights: Property may also be classified as “tangible” and “intangible”. Tangible properties are those properties which have physical existence and which can be seen or touched. Tangible properties are also known as corporeal properties. Intangible properties, also known as incorporeal Properties, have no physical existence. They are in the form of some rights under which certain benefits are given to certain persons, Such rights are known as beneficial interests or beneficial rights. Therefore, any right which {sexercised over land (or any other immovable property), by which one makes profit or gain is known as his beneficial right and it would be his intangible immovable property. Benefits to arise out of land: Besides land, every benefit arising out of land and every interest in such property is also regarded as immovable property- ‘because benefits arising out of land is an incident of it and cannot be severed from it. One may get a benefit from a land under some right. Such benefit ‘would be his intangible/incorporeal immovable property. The Registration Act expressly includes as imimovable property, benefits to arise out of land, hereditary allowances, right of way, lights, ferries and fisheries. A debt secured by a mortgage of immovable property is an interest in land and therefore, regarded as immovable property. One must be careful that where the benefits arising from land are related to standing timber, growing crops or grass, they are not considered as immovable property as they are specifically excluded by Section 3, TPA. In Anand Behera y. State of Orissa (AIR 1956 SC 17) the Apex Court held that a right to enter the Chilka lake and catch fish for a period of five Years is equivalent to profits a prendre in England and a benefit to arise ‘out of land in India and therefore it is an immovable property. Thus the right to catch and carry away the fish is a profit a prendre. The right to collect lac from jungle, fish from pond, right fo take minerals, right to ferry, right given to rear fac, rent from ‘haat’ or market place of house are various illustrations of benefits aris nd and are immovable property. Likewise, office of a hereditary priest of temple, Hindu widow's life-interest on the income of the husband’s property are the instances of immovable property. The right of 4 tenant to live in the house of his land-lord and the right to collect rent from the tenants who pay for use and occupation of land are immovable property. Similarly, a right to graze over the land of another is a profit and so is the mortgagee’s interest in the immovable property mortgaged. In Santa Bai v. State of Bombay (AIR 1959 SC $32) the Court held that right to enter land, cut and carry away wood over a period of 12 years is profit 4 prendre and hence it is an immovable property. Thus a right to collect lac from tees is also an immovable property. Similarly a right to take out by8 Property Law digging manure and rubbish accumulated in specific pit and camry away is, profit a prendre, Right to hold a fair or hat on one’s own land, right to collect rent and profits of immovable property are all instances of benefits arising ‘out of land and hence they are immovable property. In Bengal Agricultural Corporation Ltd, v. Corporation of Calcutta, AIR 1960 Cal, 123, it was observed that sludge in the sedimentation tank and ‘when just taken out of itis not regarded as immovable property thought it very much akin to earth or land. If, however, a large quantity of sludge is stored on the land and is allowed to remain there for co long a time that it becomes a part of the land, it does become immovable property. In State of Orissa v, Titaghur Paper Mills Ltd., AIR 1985 SC 1293, a contract for the purpose of felling. cutting and removing bamboos from forest areas for the purpose of converting the bamboos in paper pulp etc. and that too with several ancillary rights have been held to be benefits arising from land. ‘The word “land” means and includes everything beneath the land such as ‘minerals or mines etc. The right o extract cosl or gold or minerals etc. froin mines is also an immovable property. It also includes everything upon its surface such as house. pond or river. Owner of an open piece of land is, therefore, also the owner of the space, But because itis not practically possible to get it separated from the fand and give it separately to another person who” is not the owner of the land, it would be against the nature of this thing (ie space) to transfer it. Therefore, although space which includes also air and light is an immovable property, itis not transferable under Section 6, TPA. Right of fishery ie. right to catch fish from a pond or river, is also an immovable property. it may be noted thet the water in the pond or river is an immovable property, therefore, everything in this water including fish shall also be immovable property. And since the right of fishery is exercised on “fish in the water’, which is an immovable property, therefore, this right is an immovable property. Right of ferry means right of transportation on rivers or lakes by boats or steamer. Since river, or lke watrisan immovable property and boats or steamers are used on such waters, therefore ‘right of ferry” has been held 0 be an immovable property. ENGLISH CONCEPT OF PROFIT A PRENDRE ‘The expression “a profita prendre’ connotes what in Indian law is known as the benefits to arise out of fand. In order to be @ profit a prendre two things are necessary: (the person claiming must have interest in the land; and (iit must be in respect of a produce or profit of the soil Movable and Immovable Property 9 ‘The meaning and nature of a profit a prendre has been thus described in Halsbury’s Laws of England. Profit a prendre is @ right 1o take someth'ng off another person’s land. It may be more fully defined as a right to enter another's land and to take some profit of the soil, or @ portion of the soil itself, for the use of the owner of the right. A profit a prendre is an interest in land, and for this reason any disposition of it must be in writing. A profit a prendre which gives a right to participate in a portion only of some specified produce of the land is just as much an interest inthe land as aright tot whole of that produce. What may be taken as a profit a prendre:®7®* The subject-matter of a profit a prendre, namely the substance which the owner of the right is by virtue of the right entitled to take, may consist of animals, including fish and fowl, which are on the land, or of vegetable matter growing or deposited on the land by some agency other than that of man, or of any part of the soil itself, including mineral accretions to the soil by natural forces. The right may extend to the taking of the whole of such animal or vegetable matters or merely a part of them. Rights have been established as profits a prendre to take branches of growing trees, freshwater fish, stone, sand and shingle from the seashore and ice from a canal, also the right of pasture and of shooting, pheasants, The right to take animals férae naturae while they are upon the soil belongs to the owner of the soil, who may grant to others as a profit a prendre a right to come and take them by a grant of hunting, shooting, fowiing and so forth, Distinction between easement and a profit 2 prendre: A profit prendre isa servitude for it burdens the land or rather a person's ownership of lan¢ by separating it from the rest certain portions or fragments of the right of ‘ownership to be enjoyed by persons other than the owner of the thing itself. “Servitude” is a wider term and includes both easements and profits a prendre. The distinction between a profit a prendre an easement has been thus stated in Halsbury’s Law of England as: “The chief distinction between an 'G.7. Discuss giving reasons with the help of decides cases whether the folowing are movable or immovable property (D.U., LL.B., 2003) (2) A right to work in the mines and carry the product for three years Hint: This right is equivalent to profits @ prendre and so it is immovable Property. (b) A right to graze cattle over the land for one year. Hint: This is an immovable property as itis profits a prendre. The grazing will continue to derive nutrients from the soil for @ period of one year (6) Aright to use a road, Hint: This is an immovable proporty under Section 2(6), Registration Act, 1908. Q.8, Short Notes: Profits-e-prendre. {D.U,, LLB, 2004, 2005, 2000)Property Law easement and @ 2 profit a prendre is that whereas an easement only confers a tight to utitize the servient tenement in a particular manner of to prevent the oramission of some act on that tenement, a profit a prendre confers 2 right to take from the servient tenement some part of the soil of that tenement or minerals undervit or some part of its natural produce or the animals ferae paturae existiig upon it. What is taken must be capable of ownership, for ‘otherwise the right amounts to a mere easement.” {mn Indian law an easement is defined by Section 4 of the Indian Easement Act, L882 as being “a right which the owner or occupier of certain land ‘possesses, as such, for the beneficial enjoyment ofthat land, fo do and continue ‘odo something, orto prevent and continue to prevent something being done, ‘nor upon, or in respect of, certain other land not his own”. A profit a prendre when grafted in favour of the owner of a dominant hneitage for the beneficial enjoyment of such heritege would, therefore, be an easement but it would not bese ifthe grant was not forthe beneficial enjoyment of the grantee’s heritage LEADING CASE LAWS SMT. SHANTABAI V. STATE OF BOMBAY®*2° AIR 1958 SC 532 Facts: The petitioner's husband (a Zamindar) executed an unregistered document (calling itself @ lease), in favour of his wife (the petitioner) for a period of 12 years in April, 1948, The deed gives her the right to enter upon certain areas in the Zamindari in order to cut and take out bamboos, fuel wood and teak. Ceriain restrictions are put on the cutting, and also the feeling of certain trees is prohibited. The petitioner worked in the forests till 1950. But she was stopped from cutting any more trees after the enactment of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. She 4.8. Determine the character ofthe following property: A right to cut mango {tee (timber trees) for 2 years, (0.U,, LUB., 2008) Hint: right to cut mango trées for a period of two years is immovable broperty. The Supreme Court in Shanta Bai v. State of Bombay (AIR 1958 SC 532) has held that itis equivalent to protts a prendro. ._ Discuss, giving reasons, whether the folowing are movable or immovable properties: 10.U., LL.B., 2011, 2013] (2) Right to cut bamboo trees for a period of S years for the purpose of ‘converting them into pulp for manufacturing paper. (©) A, the owner of a forest enters into a contract with 8 and grants to him a tight to enter his forest and cut all kinds of plants and traés above the height of 19 feet for’ a period of tive years. (€}_A, the owner of an estate enters into contract with B, and grants to hima right to enter his estate and to cut only standing timber for a period of six ‘months, Movable and Immovable Property u ‘approached different authorities for validating the said lease but nothing, tangible happened. She finally filed a writ petition. The foundation of the petitioner's right is the deed. The exact nature of this document was much debated by both sides. It was said at various times by one side to be a contract ‘conferring contractual rights, a transfer, a licence coupled with a grant, that it related to movable property and that, contra, it related to immovable property. ‘The document calls itself a “lease deed”, but that is not conclusive because the true nature of the document cannot be disguised by labeling it something else. Legal Issue: (1) A right to enter on land for the purpose of cutting and carrying away timber standing on itis a benefit that arises out of land. There is no difference there between the English and the Indian law. But that still leaves the question whether this grant was of movable or immovable property. @) Under Section 3(26), General Clauses Act, it would be regarded as, “immovable property” because it is a benefit that arises out of the land and also because trees are attached to the earth. On the other hand, the TPA says in Section 3 that standing timber is not immovable property for the purpeses of that Act and so does Section 2(6), Registration Act. The question is which of these two definitions is to prevail. (3) What is the difference between standing tiinber and a tree? Supreme Court's Observations (Justice Vivian Bose) “Trees” are regarded as immovable property because they are attached to or rooted in earth. Section 2(6) of the Registration Act expressly says so and, though the TPA does not define immovable property beyond saying that it does not include “standing timber, growing crops or grass”, Trees attached to earth (except standing timber) are immovable property, even under the TPA, because of Section 3(26), General Clauses Act. In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immovable property. Now, what is the difference between standing timber and a tree? It is clear that there must be a distinction because the TPA draws one of the definitions of “immovable property” and “attached to the earth”; and it seems ‘to me that the distinction must ie in the diffrence between a tree and timber. It is to be notéd that the exclusion is only of “standing timber” and not of “timber trees ‘The distinction between these two is sound. Before a tree can be regarded as “standing timber” it must be in such a state that, if cut, if could be used as timber; and when in that stat it must be cut reasonably early. The Rule is probably grounded on generations of experience in forestry and12 Property Law Sommerce and this part of the law may have grown out ofthat. I is easy {0 see that the tree might otherwise deteriorate and that its continuance in 4 forest afer it has passed its prime might hamper the growh of younger wood 224 spol the forest and eventually the timber market. But however that mey be, the legal basis for the Rule is that trees that are not cut continue to raw nourishment from the soil and that benefit ofthis poes tothe grantee. Now, of course, a tree will continue to draw sustenance from the soil as jong as it continues to stand and live; and that physical fact of life cannot be altered by giving it another name and calling it “standing timber": But the amount of nourishment it takes, if tis felled at a reasonably early date, is so ‘ealigible that it ean be ignored for al practical purposes. Theoretically, there is no distinction between one class of tee and snther, i the drawing of ‘nourishment from the sol is the basis of the Rule. The law is grounded, notso much on logical abstractions as on sound and practical common-sense, It ‘ew empirically from instance to instance and decision to decision wntil a recognisable and workable pattern emerged. Decision: Now, the issue is how does the document in question regard this issue. tn the fitst place, the duration of the grant is twelve years i ig evident that trees that will be fit for cutting twelve years hence will not be ft for felling now. Therefore, itis not a mere sale of the trees as wood. It ts more, Itis not justa right to euta tree but also to derive a profi from the soit itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow tll it i of a size and age fit for felling as timber, and, if already of thet size, in order to enable it to continue to tive till the petitioner chooses to fell it. This aspect is emphasized in clause (5) of the deed where the cutting of ‘cak trees under 136 feet is prohibited. But, as soon as they reach that girth ‘within the twelve years, they can be felled. And clause (4) speaks of a fist cutting and a second cutting and a third cutting. As regards trees that could be utat once, there is no obligation to do so, They can be left standing tll such jie as the petitioner chooses to fell them. That means that they are not of beconverted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded as trees and not a5 ‘imber that is standing and is about to be cut and used for the purposes for Which timber is meant. |r follows that the grant is not only of standing timber but also of trees {hat ae nor ina fi state to be felled at once hut which are tobe felled gradually 88 they attain the required girth inthe course ofthe twelve years; and further, Of tees that the petitioner is not required to fell and convert into timber a; Movable and Immovable Property B ‘once even though they are of the required age and growth. Such trees cannct be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there. ‘The result is that, though such trees as can be regarded as standing timber at the date of the document, both because of their size and girth and also because of the intention to fell at an early date, would be movable property for the purposes of the Transfer of Property and Registration Acts, the remaining trees that are also covered by the grant will be immovable property, and as the total value is Rs. 26,000, the deed requires registration. Being unregistered, it passes no title or interest and, therefore, the petitioner has no right which she can enforce. The petition be dismissed. STATE OF ORISSA V. TITAGHUR PAPER MILLS CO. LYD. AIR 1985 SC 1293 Facts: In 1977, the Government of Orissa made bamboos agreed to be severed and standing trees agreed to be severed liable to tax on the turnover of purchase at the rate of ten percent through notifications issued under the Orissa Sales Tax Act, 1947. Various companies (who had earlier entered into agreements with the State of Orissa for the purchase of standing trees ‘end for the purpose of felling, cutting, obtaining and removing bamboos from forest area for the purpose of converting the bamboo into paper pulp or for purposes connected with manufacture of paper or in any connection incidental therewith) challenged the validity of these notifications through writ petitions. The High Court allowed all those writ petitions and quashed the ‘mpugned provisions. Thus, the State of Orissa has filed these appeals challenging the correctness of the judgment of the High Court. The High Court held that the impugned provisions amounted to a tax on an agreement ‘of sale and not on a sale or purchase of goods. It further held that in the case of Bamboo contracts the impugned provisions also amount to levying a tex on a profit a prendre. ‘Submissions of the Parties: Relying upon the definition of the term “goods” in the Sale of Goods Act, 1930, it was submitted on behalf of the ppellant State that the subject-matter of the impugned provisions is goods and that was made exigible to tax under the impugned provisions is a competed purchase of goods. The respondents submitted that by impugned provisions @ new class of goods not known to law wns sought to be created and made exigible to purchase tax and thet this attempt on the part of the State Government was unconstitutional as being beyond its legislative ‘competence.14 Property Law Legal Issue: What falls to be determined is the subject-matter of the impugned provisions. Whether these contracts was related to immovable property or movable property (goods)? Supreme Court’s Observations (Justice Madon) ‘The term “goods” is defined in Section 2(7), Sale of Goods Act, 1930. ‘The TPA does not give any definition of the term ‘movable property, but Section 3(36), General Clauses Act, 1897 and Section 2(9), Registration Act, 1908. What is pertinent to note is that the term “goods” means all kinds of movable property (except the classes of moveable property specifically excluded) and includes growing crops, grass and things attached ¢o or forming part of the land which are agreed to be severed before sale or under the contract of sale, ‘The TPA does not give any exhaustive definition of “immovable property”. Section 3(26), General Clauses Act defines ‘immovable property’ but a more elaborate definition is given in Section 2(6) of the Registration Act. What is pertinent to note about these definitions is that things attached to the earth are immovable property. The expression “attached! to the earth” is defined in Section 3, TPA. ‘These definitions makes it clear that while trees rooted in the earth are immovable property as being things attached to the earth by reason of the ‘definition of the term ‘immovable property” given in the General Clauses Act and the Registration Act, read with the definition of the expression “attached to the earth” given in the TPA, standing timber is movable property by reason of it being excluded from the definition of ‘immovable property" in the TPA and the Registration Act and by being expressly included within the ‘meaning of the term ‘movable property’ given in the Registration Act. ‘Trees which are ready to be felled would be standing timber and, therefore, moveable property. What is, however, material for our purpose is that while ‘res (including bamboos) rooted in the earth being things attached to the arth are immovable property and if they are standing timber are moveable property, trees (including bamboos) rooted in the earth which are agreed to be severed either before sale or under the contract of sale are not only moveable property but also goods. ‘The position in English law is that crops and other produce (except in the case ofa sale without severance toa landlord, incoming tenant or purchaser of the land) will always be “goods” for the purposes of a contract of sale since the agreement between the parties must be that they’ shall be severed cither “before sale” or “under the contract of sale”. In India, the only question which would fall to be considered is whether @ transaction concerns “goods” or “movable property” or “immovable Movable and Immovable Property 1s property”. The importance of this question is two fold: (i) in the case of immovable property, a document of the kind specified in Section 17 of the Registration Act requires to be compulsorily registered and if it is not so registered, the consequences mentioned in ‘Section 49 and 50 of that Act follow, while a document relating to goods or movable property is not required tobe registered; and (il) by reason of the interpretation placed on Entry 54 in List il in the Seventh Schedule to the Constitution of India by this Court a State cannot levy a tax on the sale or purchase of any property other than “goods’ ‘The fallacy underlying the reasoning of the High Court is that it has confused the question of the interpretation of the impugned provision with the interpretation of Timber Contracts and the Bamboo Contract. On the interpretation it placed upon the Timber Contract it came to the conclusion thatthe property in the standing trees passed only after severance and after complying with the conditions of that contract and therefore, the impugned provisions purported to levy a purchase tax on an agreement to sell. In the ‘ase of bamboos agreed to be severed, the High Court on an interpretation of the Bamboo Contract held that it was a grant of a profit a prendre and from that it further held thatthe impugned provisions were bad in law because they mounted to levy of purchase tax ona profit prendre. This approach adopted ty the High Court was erroneous in law. ‘The question of the validity of the impugned provisions had nothing to do with the legality of any action taken thereunder to make exigible to tax a particular transaction, If a notification is invalid, all actions taken under it would be invalid also. The converse, however, is not true. Where a aotification is valid, an action purported to be taken thereunder contrary to the terms of that notification or going beyond the scope of that notification would be bad in law without affecting in any manner the validity of the notification, Were the interpretation placed by the High Court ¢n the Bamboo Contract and the Timber Contracts correct, the transactions covered by them would not be liable tobe taxed under the impugned provisions and any attempt or action by the State to do so would be illegal but the validity of the impugned provisions would not be affected thereby. The challenge to the validity of the impugned provisions on the ground of their unconstitutionality must, therefore, fail Section 3(26), General Clauses Act, 1897 defines “immovable property” 45 including inter alia “benefit to arise out of land”. The definition of “immovable property” in Section 2(f), Registration Act, 1908, illustrates a benefit to arise out of land by stating that immovable property “includes Fights to ways, lights, ferries, fisheries or any other benefit to arise out of lund.” The TPA does not give any definition of immovable property. In | | | | | | | | | | | | | | | | | | i | | i | | | | | | |16 Property Law ‘Ananda Behera v. State of Urnsa, AIR 1956 SC 17, this court has held that 4 profita prendre is a benefit arising out of land and that in view of Section 3(26), General Clauses Act, itis immovable propetty within the meaning of the TPA. ‘What constitutes benefits arising out of {and rave been summarized by Malla as follows: “A benefit to arise out of land” \s-an interest in land and therefore immovable property. The first Indian Law Commissions said that they had abstained from the almost impracticable task of defining the various kinds of interests in immovable things which are considered immovable Property. In the General Clauses Act, the following have been held to be immovable property: an anrival allowance charged on land, a right to collect dues at a fair held on a plot of land; @ hat or market; aright to collect rent; life interest in the income of immovable property; aright to way; a fey: and a fishery; a lease of land.” Decision: Now we will ascertain whether the Bamboo contract can be described as a grant ofa profit a prendre. Though both the Bamboo Contract in some of its clauses and the Timber Contracts speak of “the forest produce sold and purchased under this Agreement”, there are strong countervailing factors which go to show that the Bamboo Contract is not a contract of sale of goods. While each of the “Timber Contracts’ is described in its body as “an ‘agreement for the sale and purchase of forest produce”, the Bamboo Contract is in express terms described as “a grant of exclusive right and licence to fell, cut, obtain and remove bamboos ... for the purpose of converting the bamboos into paper pulp or for purposes connected with the manufacture of paper...” Unlike the Timber Contracts, the Bamboo Contract is not an agreement to sell bamboos standing in the contract areas with an accessory licence to enter upon such areas for the purpose of felling and removing the bamboos nor is it, unlike the Timber Contracts, in respect of a particular felling season only. It isan agreement for a long period extending to fourteen years, thirteen years and eleven years with respect to different contract areas, ‘with an option to the respondent Company to renew the contract for a further ‘term of twelve years and it embraces not only bamboos which are in existence at the date of the contract but also bamboos which are to grow and come {nto existence thereafter. Under the Bamboo Contract, the respondent Company has the right to use all lands, roads and streams within as also outside the contract areas for the purpose of free ingress to and egress from the contract areas. It is also given the right to make dams across streams, cut canals, make water courses, irrigation works, roads, bridges, buildings, tramways and other Movable and Immovable Property 7 work useful or necessary for the purpose of its business of felling, cutting and removing bamboos for the purpose of converting the same into paper pulp or for purposes connected with the manufacture of paper. For the purpose it has also the right to use timber and other forest produce to be paid for at the current schedule of rates. The respondent Company has the right to extract fuel from areas allotted for that purpose in order to meet the fuel requirements of the domestic consumption in the houses and offices of the persons employed by it and to pay a fixed royalty for this purpose. Further, the Government was bound, if required by the respondent Company, to lease to ita suitable site or sites selected by it forthe erection of storehouses, sheds, depots, bungalows, staff offices, agencies and other buildings ofa like nature. ‘The above mentioned important terms and conditions go to show that the Bamboo Contract is not and cannot be a contract of sale of goods. It confers upon the respondent Company a benefit to arise out of land, namely, the right to cut and remove bamboos which would grow from the soil coupled with several ancillary rights and is thus a grant ofa profit a prendre. [cis equally not possible to view it as a composite contract one, an agreement relating to standing bamboos agreed to be severed and the other, an agreement relating to bamboos to come into existence in the future. The terms of the Bamboo Contract make it clear that itis one, integral and indivisible contract ‘which is not capable of being severed in the manner canvassed on behalf of the appellant. It is not @ lease of the contract areas to the respondent Company for its terms clearly show that there is no demise by the State Government of any area of the respondent Company. ‘The respondent Company has also no right to the exclusive possession of the contract areas but has only a right to enter upon the land to take a part of the produce thereof for its own benefit. Further, it is also pertinent that while this right to enter upon the ‘contract areas is described as a “licence”, under the Bamboo Contract the respondent Company has the right to take on storehouse, sheds, depots, bungalows, staff offices, agencies and other buildings of alike nature required for the purposes of its business. ‘The terms and conditions of the Bamboo Contract leave no doubt thet it ‘confers upon the respondent company a benefit to arise out of land it would thus be an interest in immovable property. As the grant is of the value exceeding Rs. 100, the Bamboo Contract is compulsorily registrable. It is, in fact, not registered. This is, however, immaterial because it's a grant by the Governuient of an interest in land and under Section 90 of the Registration Act itis exempt from registration. The Bamboo Contract was a grant of a profit a prendre, though the grant of such right not being for the i | i | i ( | |8 Property Law beneficial enjoyment of any land of the respondent Company, it would not be 4 easement, Being a profit 2 prendre or a benefit to arise out of land any attempt on the part ofthe State Government to tax the amounts payable under the Bamboo Contract would not only be ultra vires the Orissa Act but also ‘unconstitutional as being beyond the State’s taxing power under Entry $4 in List IT in the Seventh Schedule to the Constitution of India, ‘The Bamboo Contract is not a contract of sale of goods but is a grant of a Profit a pendre, that is, of a benefit to arise out of land and that it is not Possible to bifurcate the Bamboo contract into two: one forthe sale of bamboo existing at the date of the contract and the other for the sale of future goods, ‘that is, of bamboos to come into existence in the future. In order to ascertain the true nature and meaning of the Bamboo Contract, we have to examine the said contract as a whole with reference to all iis terms and all the rights conferred by it and nor with reference to only a few terms or with just one of the rights flowing therefrom, On a proper interpretation, the Bamboo Contract. does not confer upon the respondent Company merely a right to enter upon the land and cut bamboos and take them away. In addition to the right to enter upon the land for the above purpose, there are other important rights flowing from the Bamboo Contract which make it clear that what ‘the Bamboo Contract granted was a benefit to arise out of land which is an interest in immovable property. The attempt on the part of the State Government and the officers of its Sales Tax Department to bring to tax the amounts payable under the Bamboo Contract was, therefore, not only unconstitutional but ulira vires the Orissa Act. THINGS ATTACHED TO EARTH (Doctrine of Fixtures) Landmark Judgments (1) AIR 1974 AP 226: Bamdey v. Manorma: The intendment, object and purpose of installing the cinema equipment in question, was coy to have the beneficial enjoyment of the very equipment during the period of lease. The machinery is not only not attached to the earth, but also not permanently fastened to anything attached to earth. Hence, itis movable property @) (2000) 1 SCC 633: Duncans Industries Ltd. v. State of U.P.: The description of the machines shows without any doubt that they ‘were set up permanently in the land in question and the same was hot embedded to dismantle and remove the same for the purpose of sale as machinery at any point of time. Hence, the contention th these machines should be treated as moveable cannot be accepted, Movable and Immovable Property 19 ‘The expression “things attached to the earth”, has been seperately defined by Section 3, TPA. This expression occurs only in two places in the Act, viz, in Section 8, Para 2, and in Section 108, clause (h). It means: (things rooted in the earth, as in the case of trees and shrubs; (ii) things embedded in the earth, as in the case of walls and buildings; Gili) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached. (A) THINGS ROOTED IN THE EARTH “Things that have their roots in earth, are said to be attached to earth. This include cases of trees and shrubs. Until cut down the trees are permanently attached tothe land where they are grown. Therefore, a general rule in respect ofall the trees, plants, herbs and shrubs is that they are immovable properties. However, there is am exception tothis general rule, standing timber, growing crops and grass, though rooted in the earth, are movable properties. These are all things usually contemplated as severable from the soil and are regarded 4s movable property. One must be careful that trees and shrubs standing on the land may be sold apart from the land with an intention to be cut and removed as wood, such trees and shrubs will be regarded as movable property, Mathura Das y. Jadubir, (1906) ILR 28 All 277. Trees and shrubs are immovable property but as soon as a tree or plant is cut down itis detached from the land and is no more a part of the land, and thus loosing the character of an immovable property and becoming movable property. Standing timber v. Fruit bearing trees: Timber is useful for the construction of house but to be used as timber it has to be severed from the Jand. Thus these trees whose wood is useful as timber they are treated as movable property. For example, seesham, babool, neem etc. are ordinarily standing timber and are, therefore, movable property although they are rooted in earth. Trees, which bear fruits, are not standing timber but are constituted as immovable property. Thereare, however, certain fruit bearing toes, such as tree of mango, which are also used as timber, when such trees are to be regarded as movable or immovable property depends upon the circumstances of the case. In Shanta Bai v. State of Bombay, AIR 1958 SC 532, it was observed that the fruit bearing trees can be both movable or immovable depending upon the circumstances. If the intention is to use them for the purpose of enjoying their fruits they will be regarded as 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 purpose they would be timber and would accordingly be regarded as movable property.20 Property Law Here we may keep in mind the rule known as the Rule in Marshall v, Green (1875) wherein there was a sale of trees to be cut and taken away immediately. the sale was not one relating to immovable property. The principle is this: Do the parties intend that the tree should continue to have the benefit of further nutriment tobe afforded by the land? Wthe answer is ‘yes’, the tee is to be treated as immovable property. On the other hand ifthe parties intend to withdraw the tree from the land, the land is practically serving only as a ‘warehouse for the things sold and what is sold (the tree) isto be treated as movable propery. {In English law an unconditional sale of growing tree to be cut by the purchaser has been held to be sale of an interest in the land but not so iFitis stipulated that they are to be removed as soon as possible. In Seemi Chettiar y. Santhanathan, (1897) 20 Mad, 58, it was observed that if the situation is that the transfer includes the right to fell the trees for a term of years so that the transferee derived benefit from further growth of trees or shrubs, the transfer would be regarded as transfer of immovable property Transferred land includes anything attached with the land: Interest in property includes anything attached to land including trees standing on the land. Where a vendor sells his right, ttle and interest in the land, it will include standing trees unless expressly or impliedly provided otherwise in the agreement. The thing so attached will go to the transferee as a legal incident of the property transferred. But where the trees are sold for being cut and removed, it does not mean that land is also transferred alongwith the trees. In Suresh Chand y. Kundan, (2001) 10 SCC 221, it was observed that it is open to the vendor to while transferring land to exclude the trees from sale if he wants to appropriate them by cutting and removing them. In the absence of ‘any express or implied intention in the agreement, it would by taken that land alongwith saplings standing on the land which subsequently had grown into trees were sold. (8) THINGS EMBEDDED IN THE EARTH ‘Things which are fixed firmly in the earth and whose foundation is laid well below the normal surface of the earth are things embedded in the earth ‘The concept intends to include those that are manually or mechanically ut down deep in the earth much beyond what it would otherwise go by its weight. They include such thing as houses, buildings, walls or electricity Poles etc. The rule is that if the article stands on the earth upon its own weight it will not be part of the land but if itis caused to go deeper in the earth by external agency, then itis part of a land. ‘Where the things are just placed on the surface of the earth without any intention to make them part of the land, the things may not be immovable Movable and Immovable Property a properties even if they appear to be fixed in the land. For example, heavy things such as anchor, road-roller or a heavy stone placed on the land may go two or three feets deep into the earth by virtue of their own weight. But such ‘things are not annexed to or embedded in the earth. Therefore, the anchor fixed to the land in order to stop the movement of a ship and a road-roller embedded a few feets deep into the land or other heavy things which are fixed in the land only due to their own weight, are not things attached to earth ‘When the article in question is no further attached to the land than by its ‘own weight itis generally to be considered as movable property. But even in such a case if the intention is to make the article as part of the land they 0 become part of the land, Thus, where blocks of stone are place one on the top of other without any mortar or cement for the purpose of farming a dry stone wall would become part ofthe land and therefore, immovable property. But when the same stones are deposited in a builder's yard for convenience sake stacked on the top of each other in a form of wall, would reniain movable Property. The question whether a thing embedded in the earth is immovable property fr not depends on the fact of each case, The test is whether or not the thing rests by its own weight on earth and whether it can or cannot change place and be removed from one place to another. in Holland v. Hodgson (1872), Justice Blackburn observed: “The general maxim af the law is, that what is annexed 10 the land becomes part of the land. But it is very difficult if nex impossible to say with precision what constituted an annexation sufficient for this purpose, It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, vis. the degree of annexation and the object of the annexation. (0 Degree and Mode of Annexation: It is an important element for ‘consideration. If thing is so arinexed to land that it cannot be removed from its place without great damage to the land, it should be regarded as annexed in perpetuity and should be considered as immovable property. Therefore, ‘an anchor of a ship embedded in earth, bricks lying in a heap, tapestries attached to house which can be removed without damaging the house, and hut which merely rests by it own weight on the earth, ae all considered as movable property. But tie up seats fastened to the floor of cinema hall, advertisement hoardings firmly embedded in the earth and looms attached to the floor and beams of a mill are regarded as part of land and therefore immovable property In Holland v. Hodgson (1872), Lord Blackburn observed that “the true rule is that articles that are not otherwise attached to land than by their own weight are not be considered part of the land unless itis shown that they were2 Property Law intended to be part of the land. On the contrary, an article which is affixed to the land even slightly is to be considered as part of the land unless itis shown that it was intended to continue as chattel, the onus lying on those who contend that itis a chattel.” (ii) Object of Annexation: This is more important element but is a question of fact to be determined by the facts and circumstances of each case. Thus, where blocks of stone are placed one on the top of the other without any mortar or eement for the purpose of farming.a dry stone wall would become part of the land and, therefore, immovable property, But when the same stones are deposited in a builders yard for convenience sake sacked on the top of cach other in a form of wall would remain movable property, The test is whether the annexation is with the object of the permanent ‘beneficial enjoyment of the land or building? If yes, it would be a fixture or immovable property, otherwise not. If the intention is the permanent improvement of the premises, the chattels or movable fixed or annexed become, fixtures. A well imbedded in the earth or machinery embedded in ‘the earth, brick piitars erected on land are all considered as part of the land, and, therefore, immovable property. Therefore, itcan be said that ifthe article stands on the earth with its own weigh, it will not be part of land but if itis caused to go deeper in the earth by external agency then it becomes part of land ‘The nature of the interest in the land possessed by the person who causes the annexation playsan important role. The object of annexation can be inferred ‘from the interest the person has in the property to which the annexation made. tf the person is the owner of the land, the inference would be that attachment or annexation is meant to be permanent and immovable. Whereas if the person fas temporary possession, it will be inferred that annexation is also temporary (€) THINGS ATTACHED TO WHAT IS SO EMBEDDED?" ‘Two tests need to be remembered in this connection: (® the thing must be attached permanently; and ii) roustalso be attached for the beneficial enjoyment of house or building oF 10 which it is attached, ‘G11. With the help of decided cases, decide whether the following are movable ‘or immovable properties: [D.U., LLB., 2002, 2003, 2006, 2007] (@) An air-conditioner installed by nuts and Botts in a room by the owner himset. Hint: This will be presumed to be for the beneficial enjoyment of bis immovable property. However, the owner can express a contrary intention at the time of transferring his property (Section 8), Movable and Immovable Property 2B Itis only then the thing will be said to be “aitached to earth”. This category of things includes doors, windows and shutters of a house which are attached to the house for the permanent enjoyment of that to which they are attached, ‘They have no separate existence of their own and form part of the house. Here in this clause, word “permanent” is used in contradiction to the word “temporary”. The word ‘permanent’ is used as an antithesis to the word ‘temporary’. Thus, to be regarded as immovable property a chattel must be attached to the immovable property as permanently as the things to which it. is attached, ‘The words “permanent” and “beneficial enjoyment” must be read together 4s one phrase and should not be read separately. An attachment must be both permanent and for the beneficial enjoyment of the thing to which ‘they are attached, If the attachment is for the beneficial enjoyment of the ‘thing itself, then it remains @ chattel even though fixed to the earth for the ‘time being. Its tobe kept in mind that the attachment should be for permanent beneficial enjoyment of the thing to which they are attached. The test in all such eases is, with what intention were the articles put into the building? ‘Whether they were put in for the more beneficial enjoyment of the building or for some other purpose. The degree, manner, extent and strength of attachment of the chattel to the earth or building, are the main features to be regarded. ‘Things attached without any intention of making them apart of the house/ building would not be immovable properties. Ornamental fittings (like tapestry, painting and mirrors, pier glasses etc), festivities, electrical appliances, fittings and other decorations though fastened to walls, doors, ete. are not considered immovable because: (i) these are not permanent but only transitory and ee en (b) A ceiling fen fixed by the ownerfandlord in his house. Hint: itis presumed to be immovable property, as per the test of ‘purpose ‘of annexation.” (6) Aceiing tan fixed by tne tenant in the house. Hint: The coiling fan fixed by a tenant is movable property because the intention of the tenant is presumed fo be the beneficial enjoyment of thing itself and not to benefit the immovable property which in any case doos not belong to him. (4) Water-pipes fixed by owner of a house to got supply of waterfrom.C.0. into his house, Hint: These are immovable property because they are for the permanent beneficial enjoyment of the property, (@) An object attached to a thing which is imbedded in the earth, Hint: I the object is permanently attached toa thing which is imbeddedin the earn, itis an immovable property.24 Property Law ‘ccasional; (ii) are not in any Sense necessary for the permanent beneficial enjoyment of walls, doors and house etc.; and (ii) attached not for the permanent beneficial enjoyment of the house but only for the use and enjoyment ofthe ‘things’ iself In Perumal Naicker v. Ramaswamy, (AIR 1969 Mad, 346) it was held that ifa chattel ie. movable property is attached to earth or building, it js “immovable property’ and it is a mixed question of fact and law. The attachment should be such as to partake of the character of the attachment of the tres or shrubs rooted to the earth or walls or buildings imbedded in that sense, further the test is whether such an attachment is for the permanent beneficial enjoyment ofthe immovable property to which it attached. For a chattel to become part of immovable property and to be regarded as such property, it must become attached to the immovable property as permanently as a building or tree is attached to the earth. If, in ‘the nature of things the property isa movable property and for is beneficial Use of enjoyment it is necessary to imbed it or fx it on earth, though permanently, that is when itis in use, it should not be regarded as immovable Property for that reason, Almost the same view was expressed by thei lordships of Mackas High Court in $.P.K.N, Subramanian Firm v. M. Chidambaram Seervat AIR 1940 Mad. 825, whore the defendants (tenants) were running a cinema and had, for the purpose of generating electricity, installed an oil engine whic’ they had fixed with nuts and bolts on a cemented platform. Later the question arose as to whether a security bond pledging an oil engine installed as a part of the cinema can be deemed to bea transaction relating to immovable property It was observed that in order to settle this point regard has to had not merely to the nature ofthe atachment by which the engine i fixed on the ground but also tothe circumstances in which it came to be fixed. If things is imbedded in the earth or attached to what is so imbedded for the permanent beneficial enjoyment of the immovable property to which itis attached, then itis part of the immovable property, ifthe attachment is merely for the beneficial enjoyment of the chattel itself and not of the land, then it remains a chattel, even though fixed for the time being so that it may be enjoyed. The Madras High Court held that the intention of the defendants vas clear, viz they did not treat engine asa part ofthe premises, as they were under a lease and were expecting eviction from premises. Thus, they could ‘not give the plaintiff any right ofa valuable nature in the immovable property as such Movable and Immovable Property 25 Doctrine of Fixtures (English Law)®*@ Under the English law, by virtue of attachment, a thing becomes a part of the land and property of the owner of the soil. The doctrine of fixture, under English law can be explained with the help of two maxims. They are as follows: @) quie quid plantatur solo solo credit ic., whatsoever is planted in the ies only when there is no @) quic quid inaedificatur solo soto credit e., whatever is built into or ‘embedded into or attached to soil becomes part of the earth. It does not apply to ‘trade fixtures’. The term ‘trade fixtures? refers to all those things attached or affixed by a tenant on the land of the other, which are necessary for carrying on his trade. ‘The English law of fixtures has no strict application to the law in India in view of the statutory definitions. In India, there are two rules that determine ‘fixture, These rules apply only when the person is in lawful occupation of the property and is not a trespasser. (1) The first rule is that a person is entitled to remove the attachment if he vacated the premises leaving the land in the same state as it was before the attachment. (2) The second rules that if he leaves the attachment on the land and the ‘owner derives a benefit from it, he is entitled to compensation for the value of attachment or improvement. ‘Tests to determine whether a chattel (movable) after attachment becomes a fixture (immovable) 1, Degree/mode of attachment and result of its detachment: This testis laid down in Holland v. Hodgson (1872): (@) Ifa movable property (chattel) goes down in earth or resting on carth because of its sheer weight itis presumed to be movable Unless contrary is proved. (b) Tf the chattel (movable) is fixed to the land even slightly it is presumed to be immovable property unless contrary is proved. In other words if in attaching some external aid is required such as construction of foundation or is fixed to the surface with the help of nuts and bolts, the presumption will be that ithas become part of earth. 'G. 12, Explain the doctrine of fixtures and discuss whether a machinery tied te eerth withthe help of nuts and bolts on a cement foundation to prevent i from shaking is movable or immovable property. [D.U., LL.B., 2009, 10) Q.13. Short Notes: Doctrine of fixtures.[D.U., LL.B, 2002, 2009, 2013, 2018]Property Law (6) If in trying to remove the movable, no damage is caused to the thing to which it was attached the presumption will be that itis movable. (@)_1Fin trying to remove the movable the thing to which itis attached is destroyed or loses its value the presumption will be that the attachment had become part of that to which it was attached, 2. Object or purpose of attachment: Where the purpose or object is to fix the attachment permanently ot fora sufficiently long period of time, the presumption will be that it has become a fixture. On the other hand if the object is to enjoy the attachment for a specific short period of time and then to remove it, itis presumed that itis still « chattel, For example fixtures like ceiling fens, lighting system, wiring, ‘water taps etc. are fixed not for the enjoyment of things themselves but for the permanent beneficial enjoyment of that to whiich it is attacked. Thus if X transfers a house/flat/apartment to Y, such fixtures also go with the house/flavapartment. 1h Leigh v. Taylor (1902), the House of Lords held that certain valuable tapestries affixed by a tenant to the walls of a house for the purpose of omament and for the better enjoyment of them as chattels, had not become part of the house, but formed part ofthe personal estate ofthe tenant for life. Pacts have been regarded in different aspects according to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time become necessary or not according t0 the nature of the structure which was being dealt with. The principle appears to be that unless it has become part of the house in any intelligible sense, is not a thing which can be said to be immovable property In Holtand v, Hodgson (1872), Lord Blackburn laid down the rule in the following words: “Whenever the chattels have been annexed to the lend for the purpose of the better enjoyment the land itself, the intention must clearly be presumed to be to annex the property in the chattels to the property in the tand, but the nature of the annexation may be such as to show that the intention \vas to annex them only temporarily. The degree and nature of the annexation is an important element in consideration, for which chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land; one shall not desiroy the principal thing by taking away the accessory twit.” Application of Law of Fixtures in India: The maxim which is found in English law at the most has only a limited application in India, in Narayan v. Jitendra, AIR 1927 PC 135, the Privy Council observed that there is nothing, Movable and Immovable Property 7 in the laws or customs of India to show any traces of the existence of any absolute rule of lave that whatever is affixed or built on the soil becomes a part of it and is subjected to the same rights of property as the soil itself. The question must in each case be decided according to the circumstances. Jn Subramanian Firm v. Chindambaram, AIR 1940 Mad 527, the machinery installed by a tenant for running a cinema in the premises taken by him on lease for his own profit, was held to be movable property as it was not 4 permanent improvement to the premises. It was observed that in deciding whether or not a transaction relating to an engine is a transaction relating to immovable property regard must be had not merely to the nature of the attachment by which the engine is fixed on the ground, but also to the circumstances in which it came to be fixed, the tile of the person fixing it and the subject of the transaction by which the engine is transferred or bound. In Md. Ebrahim v. Northern Fibre Trading Co., AIR 1944 Mad 492, a Division Bench was of the view that the machinery installed on a cement platform and held in position by being attached to iron pillars fixed in the around, was immovable property, as the annexation was made by the person ‘who owned the building as well as the machinery. Justice K. Ayyangar observed: “It is obvious that his object was to become the owner of both for the purpose of carrying on the business and for his own and individual benefit. Ifthe argument is correct, namely, that the same intention which the vendors hhad must be atributed tothe purchaser, the only way of establishing.a different intention would be by the purchaser removing the machinery from the ground {to which it was annexed and again attaching it with the express intention of making it part of the land. We cannot imagine thatthe law requires any such procedure to be adopted for inferring an intention on the part of the purchaser to make the machinery part of the land”. In Board of Revenue v. Venkataswami, AIR 1955 Mad 620, a Full Bench held that 4 lease of the properties relating to a touring cinema is not chargeable to stamp duty as the equipment of the touring cinema which is capable of being removed and collapsible does not fall within the category of immovable property. To sum up, everything depends upon the circumstances of each case. If the intention is to use the thing as part of the land then it becomes the part of the land whereas if the intention is to use the thing separately then it is not part of the land, ‘Thus, it is clear that the doctrine of fixtures stands modified to the extent that when a thing is attached or imbedded in the earth for the permanent enjoyment of that to which it is attached, then, unless the intentions establish to the contrary the things would be deemed to be immovable property. Fori | | | | | | | | 28 Property Law example, the fixture like wiring, lighting system, laying-out of water pipes and fixing cupboards and ceiling fans along with all sorts of switch gear would be deemed to be immovable property as such things are fixed not for the enjoyment of the things themselves, but for better beneficial use of the place to which such things are fixed, Thus. when 4 transfers a house to B. it oes to 8, with all its fixtures including doors windows, internal wiring, switch gear, sanitary equipment and so on, because such things are supposed to be of a Permanent nature and are meant for the beneficial enjoyment of the house, ‘One cannot enjoy a window by itself, nor can one use sanitaryware otherwise than in a house. The transferor cannot turn back and say that he sold the hhouse minus the wiring, windows, doors, panels cupboards, toilet conveniences and so on. LEADING CASE LAWS BAMDEV V. MANORAMA®"; AIR (974 AP 226 Facts: The plaintiff's husband had obtained » possessory mortgage of a piece of land with a view to run a touring cinema in that place. He built a temporary cinema structure and erected a temporary pandal on the site, He purchased a cinema projector and a diesel oil engine. These equipments have been imbedded and installed in the earth by constructing foundations for the purpose of running the cinema concern known as “Kumar Touring Talkies”. Finding no time to manage the cinema concern he entrusted the ‘management of the cinema concern to the defendant out of trust and confidence in him. The defendant/appellant (Bamdey) taking advantage of his position, Ga. Wihthehe of decided cases, decide wheter th folowing are movable orimmovable poperios:[O.Us LL.B, 2001, 2008, 207, 2008) (©) Amochinerinstaledbyapesénon sown lator tangs erporany éinea hal known as “Govinda Touring Take” na pure temoray sincture Hi is movable property because it is a temporary structure and it is not permansrty bode inthe cath (©) Ol engine atachod tothe indy mortgage of ond Hint It's a mevable property because he tention ofthe temporary oscuro ands presumed otto bona the landby anything whan attaches to it, edad et Still (©) An Of engineMachinery stated in @ cinema bung by tant in Tented buliding. fee i (©) Macher faett the goundin a factory wth the help of nuts and bts Le prevart trom shaking nen his ple epeeton (e) Pumps and the pipes that are embedded in the earth with the help of cornent oundatior to rw water ec y the over We ara (0 Ataconl dsc ated hase ya person those ena io to monte Movable and immovable Property 29 as being the person in management, colluded with the mortgagor of land and got an endorsement of discharge made on the mortgage bond dated 1.9.1957 and subsequently obtained the mortgage in his name. The plaintiff's husband hhas issued a notice on 5.5.1961 calling upon the defendant to render a correct account of the management of the cinema concem and to deliver possession of the entire cinema concern including the machinery, equipment and also the site, Though the claim of the plaintiff's husband was denied categorically by the defendant as early as 2.6.1961 no suit hed been filed by him during his life-time for the recovery of possession of the cinéma equipment, When he died, the plaintiff filed the present suit in 1965 for a declaration that she isthe ‘owner of the cinema equipments, and for directing the defendant to deliver the same to the plaintiff Submissions of the parties to the suit: The defendant/appeliant contended that the cinema projector and the oil engine and their accessories are movable property and they do not become immovable property on their boeing embedded in or fastened to any property in the Kumar Touring Talkies as the intention and object of fixing the same was to have the ben enjoyment of the equipment and machinery but not to benefit the such premise, it is argued that the suit claim being one related to movable property, should have been preferred within 3 years from the date ofthe refusal or denial of the plaintiff's claim by the defendant on 2.6.1961 and the present suit filed on July 20, 1966 is, therefore, barred by limitation, The plaintiff respondent (Manorama) contended thatthe suit for declaration ofthe plaintiff's title fo the cinema concer is within the period of limitation, as the property ‘whose possession is sought to be recovered, is immovable but not movable property. ‘Trial Court’s Decision: The cinema equipment as well as the oil engine ‘which were embedded in the earth are immovable property and therefore, the sult Was within the period of limitation. The suit property really belonged to ‘he plaintiff's husband who had entrusted the management of the cinema concem to the defendant. Inthe result, the plaintiff is really the ultimate owner of the suit property Legal Issue: Whether, on the facts and in the circumstances, the suit for the recovery of possession of the cinema equipment and their accessories is barred by limitation? The pertinent question that falls for decision is wit the reliefS sought for in the plaint relate to movable or immovable property High Court’s Observations It is well-settled that a suit for declaration of title to or for recovery of possession of immovable property can be filed within 12 years from the date Of the refusal or denial ofthe plaintif’s right by the opposing party. However,30 Property Law in the case of movable property, such a suit must be filed within 3 years from the date of refusal or denial of the plaintiff's right. The answer to the point relating to limitation depends upon the nature and character of the property whose possession is sought to be recovered by the plaintiff. If the propery in respect of which the declaration is sought for and of which delivery of possession is prayed for, or in lieu of which alternative claim for recovery of money is mace, is found to be immovable but not movable property the present suit filed 5 years after the denial by the defendant of the plaintiff's right must bbe held to be within the period oF imitation, But, on the other hand, if the reliefs sought for are construed to be in respect of movable property as contended by the appellant, the suit must be held to be barred by limitation as itis filed beyond the period of 3 years. Y rom a reading of the statutory definitions ofthe terms “movable propery” immovable property” in various Statutes, it is manifest that things attached to the earth or permanently fastened to anything attached to the earth are not movable bat immovable property. The machinery in question, ic. the einema projector, diesel oil engine and their accessories does not fall within any of the categories of immovable property. Though it is really movable property, it may become immovable property ifitis atached tothe earth or pemianentiy fastened to anything which is attached tothe earth. The enquiry should be not ‘whether the attachment is direct or indirect, but what isthe nature and character ‘of the attachmient and the intendment and object of such attachment are, ‘The question whether any machinery such as an oil engine imbedded in carh or permanently fastened to anything attached to the earth is mixed question of fact and law depending upon the facts and circumstances of each case, There is no statutory test or guideline having universal application, for the determination of the nature and character of the property, whether movable or immovable, Each factor or circumstance by Itself may not be conclusive or decisive, but the cumulative effect or the totality of the material facts and circumstances must be taken as a fair and reasonable guide to determine the nature of the property in a given case. The English law of fixtures has no strict application to this aspect of the Taw in so far as ‘our country is concemed, in view of te statutory definitions ofthe expressions immovable property and ‘movable property’ in the General Clauses Act. ‘Transfer of Property Act and Registration Act. and ‘The tests enunciated by the decided cases to determine the character and nature of the property are (@ What is the intendment, object and purpose of installing the machinery—Whether it is the beneficial enjoyment of the building. land or structure, or the enjoyment of the very machinery? Movable and Immovable Property 3 (Gi) The degree and manner of attachment or annexation of the machinery to the earth. \Where the machinery and the building or land on which itis installed are owned by one and the same person, normally it should be inferred unless the contrary is proved, that the object and purpose of installing the machinery is to have beneficial enjoyment of the entire building or land, but not the sole ‘enjoyment of the very machinery itself, However, where the machinery imbedded or installed and the building or land belong to two different persons, the intendment and object of the person who is in possession and enjoyment of the property in installing or annexing the machinery must normally be presumed, until the contrary is proved, to be to exploit the benefit of the machinery alone, as he is not interested in the building or the land. Where the building or land or factory is taken on lease for a term by a lease and he installs certain machinery on the property during the lease period, it has to be held that his object and purpose of installing the machinery was the beneficial enjoyment ofthe very machinery during the period of his lease. ‘A tenant, who is in possession of land for a certain period, would not intend to make any permanent improvement to the land itself but try to make use of any machine or oil engine during the period of his lease. In all probability he ‘may remove the oil engine or machine from the land the moment his object of its beneficial enjoyment during his lease period is achieved. In such a ease, the fixture on the land cannot be termed to be a permanent one so as to bring it within the meaning of immovable property. ‘The nature of the property on which the machinery was installed is also taken into consideration in determining in character of the machinery. Where the building in which machinery such as an oil engine or a cinema projector has been installed by the owner, is not « pucca and permanent one, but is only a temporary shed or tent, his intention and purpose could only be the beneficial enjoyment of the very machinery but not the building. However, where a cinema projector end an oil engine have been installed in ‘a permanént cinema theatre, the purpose and object of installing the same ‘must invariably be the beneficial employment of the very cinema theater The intendment, object and purpose of the person who fastens or installs the machinery has to be inferred from the proved facts and admitted circumstances. Decision: The ciriema concer is a touring talkies. Its not a pucca cinema hall, but it is only a temporary shed. The cabin portion is built with zinc sheets and the remaining tent is covered with oil cloth, The cinema concern, as its very name “Kumar Touring Talkies” indicates, is a temporary concern. The management of the concern obtained permission to exhibit shows| | | t | | | | | i | | | 32 Property Law temporarily during the period for which a temporary license has been granted by the concerned authorities. It admits of no doubt that a touring talkies would not be generally at one and the same place permanently but it will be moved freely from place depending upon the demand and the convenience of the proprietor. Indisputably, the fand on which the said Talkies has been raised really belongs to someone else. The claimant of the talkies must be held to be Usufructurary mortgagee of the land. The lease obtained for running the Kumar Touring Talkies was only for a period of one year after the expiry of which there was no guarantee or assurance thatthe management of the concen would ‘automatically get extension of period for running the shows, The management ‘may or may not obtain such extension, ‘The person, who installed the cinema equipment on the land during the ‘ease period for the specific and limited purpose of exhibiting cinema shows, being the usufructuary mortgagee of the land but not the owner thereof must have intended to have only the beneficial enjoyment of the cinema equipment but would not have intended fo benefit the very land which was not owned by him. The lessee or the usufruetuary mortgage of the land, in installing the diesel oil engine, cinema projector e‘c., must invariably have intended to make use of the said equipment during the limited lease period and thereafter. separate the same from the land, as he was not interested in the improvement of the land belonging to another, On a careful consideration of the entire facts and circumstances, we are of the firm view that the intendment, object and purpose of installing the cinema equipment in question, was only to have the beneficial enjoyment ofthe very equipment during the period of the lease or mortgage. That apart, the diesel oil engine and the cinema projector are not rooted in the earth as in the case of trees and shrubs, or imbedded in the earth as in the case of walls or buildings or attached to what is so imbedded for the permanent beneficial enjoyment of that to which they are attached. In the circumstances, the equipment or machinery must be held to have not been attached to the earth within the meaning of the expression “attached to the earth under Section 3 TPA. The machinery is not only not attached to the earth, but also not permanently fastened to anything attached to the earth, Hence, the machinery in question must be held to be movable property but not immovable property. On that premise, it must be held that the suit for the recovery of possession beyond the period of three years after the denial by the defendant of the plaintiff's right, is barred by limitation, Thus, the appeal is allowed, Movable and Immovable Property 3 DUNCANS INDUSTRIES LTD. V. STATE OF UP? (2000) 1 SCC 633 Faets: In November, 1993, Company A executed an agreement of sale wherein it agreed to transfer on “as is where is” basis and “as @ going concern” its fertilizer business (manufacturing and marketing) in favour of Company D (appellant). The term “fertilizer business” was defined to mean and include

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