Property : The word “property” has not been defined in the Transfer of Property Act, 1882.

Immovable Property :

The Transfer of Property Act, 1882 has not defined this term. Section 3 merely lays down that “immovable property” does not include standing timber, growing crops of grass.

According to Section 3(26) of the General Clauses Act, 1897, the “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything to the earth.

In the Indian Registration Act, where it is provided as follows: Immovable property includes land, building, hereditary allowances, right to ways lights, ferries, fisheries or any other benefits to arise out of land and things attached to earth, but not standing timber, growing crops or grass.

a) Land – The land includes earth’s surface (may be covered by water), the column of space above the surface and the ground beneath the surface. Thus, all objects which are on or under the surface in its natural state (e.g. minerals) are included. And, so are the objects placed by human agency with the intention of permanent annexation (e.g. buildings, walls and fences).

b) Benefits to arise out of land (‘Profit a prendre’) – Every benefit arising out of immovable property and every interest in such property is also regarded as immovable property.

The Registration Act, expressly includes as immovable property – benefits to arise out of land such as hereditary allowances, rights of ways, lights ferries, and fisheries.

The term ‘profit a prendre’ thus implies that if X sells a forest to Y, the trees, rivers, minerals, etc. all forming party of the land or the benefit to arise out of land, will go with it.

c) Things attached to earth (Doctrine of Fixtures) – Section 3, Transfer of Property Act, defines the expression “attached to the earth” as including–

I. things rooted in the earth,
II. things imbedded in the earth,
III. things attached to what is so imbedded, and
IV. chattel attached to earth or building.
Any movable property attached to the earth or permanently fastened to anything so attached, has become immovable property. It is called a fixture.

  1. Degree/mode of annexation [rule in Holland v. Hodgson (1872) LR7CP 328] – If the chattel (movable property) is resting on the land merely on its own weight, the presumption is that it is movable property, unless contrary is proved. However, if it is fixed to the land even slightly or it is caused to go deeper in the earth by external agency, then it is deemed to be immovable property (i.e. part of the land), unless contrary is proved.
    For example, tied up seats of cinema hall are immovable, but not screws resting on brick-work and timber and tapestries.
  2. Object/purpose of annexation – To become a fixture, a chattel should be attached to immovable property for the “permanent beneficial enjoyment” of that to which it is attached (In the case of an owner, this is presumed to be the purpose, but in the case of a tenant, this presumption is not there). The doctrine of fixture thus stands modified to the extent; in England the law as to fixture is based on the maxim quic quid plantatur solo, solo cedit (whatever is planted on the soil belongs to the soil).
    For example, fixtures like wiring, lighting system, ceiling fans, etc. are fixed not for the enjoyment of thing themselves (e.g. one cannot enjoy a window by itself), but for the permanent beneficial enjoyment of that to which it is attached (i.e., room/house). Thus, if A transfers a house to B, such fixtures also goes with the house. However, if tenant fixes such fixtures (e.g. a fan), it will be treated as movable property as tenant is presumed not have the intention to permanently benefit the immovable property. The object could only have been to enjoy the machinery (fan). Everything therefore depends upon the circumstances of each case. Anchor of a ship will not be party of the land howsoever deeper it may have gone in the earth, but if it is used to support the strain of suspension bridge it will become party of the land.
  3. Things rooted in the earth – It includes such things as trees and shrubs, except standing timber, growing crops and grass. If the parties intend that the tree should continue to have the benefit of further sustenance or nutriment by the soil (land), then such tree is immovable property. But if the intention is to withdraw or cut tree from the land, then it is movable property.
  4. Things imbedded in the earth – It includes such things as houses and buildings.
  5. Things attached to what is so imbedded – The doors and windows of a house are attached to the house for the permanent enjoyment of the house. But if the attachment is not intended to be permanent, the things attached are not immovable property e.g. electric fans or window blinds.
  6. Chattel attached to earth or building – The decree, manner extent and strength of attachment of the chattel to the earth or building, are the main features to be regarded

SHANTA BAI V. STATE OF BOMBAY, AIR, 1958 SC 532

[A right to enter upon the land of another and carry a part of the produce is an instance of profits a pendre i.e. benefit arising out of land, and therefore, a grant in immovable property].

In this case, a lease document for a period of 12 and a half years was executed by a Zamindar in the favour of his wife: ‘right to cut and appropriate wood from Zamindari forest (estate)’ for a consideration of Rs. 26,000/-. A right was conferred upon her to cut and take bamboo, fuel wood and teak but there was prohibition for cutting teak plants under the height of one and a half feet. The moment the teak trees reaches that girth, they could be felled, but within 12 years. When the MP Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 was passed, all proprietary rights in the land became vested in the State and she was stopped from cutting any more trees. She filed a petition in the court contending that as the right granted to her was a right in standing timber (movable property), she was entitled to compensation.

The issue was whether it is a transfer of movable or immovable property. Trees are regarded as immovable property because it is a benefit that arise out of the land and also because they are attached to the earth. But, standing timber (trees in such a state that if cut, they could be used as timber) is movable property.

The court observed: The exclusion in the Transfer of Property Act is only for ‘standing timber’ and not of ‘timber trees’. Standing timber must be a tree that is in a state fit for use for building or industrial purposes, and looked upon as a timber even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil.
In the present case, the duration of the grant is 12 years. It is evident that trees that will be fit for cutting 12 years hence will not be fit for felling new. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a wish to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber and if already of that size, in order to enable it to continue to live till the petitioner chose to fell it.

Thus, the grant was not only for standing timber, but also for trees that were to fell gradually as they grow to attain required height (and these trees obviously are immovable property). In other words, they are to be regarded as trees and not as timber that is standing. It is clear because the right was spread for a period of 12 years and the intention was not to cut the trees at a reasonably early time period.
Therefore, the lease document is not a transfer of trees as wood (movable property) but a transfer of benefits to arise out of land (immovable property), viz. right to fell trees for a term of years, so that the transferee derives a benefit from further growth of trees.

STATE OF ORISSA V. TITAGHUR PAPER MILLS CO. LTD., AIR 1985 SC 1291

Facts and issue – In this case, a contract of the petitioner company with State of Orissa, for the purpose of felling, cutting and removing bamboos from forest areas for the purpose of converting the bamboos in paper pulp, or for the purposes connected with the manufacture of paper, etc. have been held to be profit a pendre or benefits arising from land, and thus, an immovable property

In Ananda Bebera v. State of Orissa, AIR, 1956 SC 17, the petitioners had obtained oral licenses for catching and appropriating fish from Chilka Lake. Held that what was sold to the petitioners was the right to catch and carry away fish in specific sections of the lake for a specified future period and that this amounted to a licence to enter on the land coupled with a grant to catch and carry away the fish which right was a profit a prendre and in England it would be regarded as an interest in land because is was a right to take some profit of the soil for the use of the owner of the right and in India it would be regarded as a benefit arising out of the land and as such would be ‘immovable’ property.
The court then pointed out that fish did not come under the category of property excluded from the definition of “immovable property”.

Firm Chhotabhai Jethabai Patel Co. v. State of M.P. (AIR, 1953 SC 108) held there that a right to ‘pluck, collect and carry away’ tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an ‘encumbrance’ within the meaning of the M.P. Abolition of Proprietary Rights Act. But the contract there was to ‘pluck, collect and carry away’ the leaves. The only kinds of leaves that can be ‘plucked’ are those that are growing on trees and it is evident that there must be a fresh drop of leaves at periodic intervals. That would make it a ‘growing crop’ and a ‘growing crop’ is expressly exempted from the definition of ‘immovable property’ in the Transfer of Property Act. That case is distinguishable and does not apply here.

In Mahadeo v. State of Bombay (AIR, 1959 SC 735), Some proprietors of Zamindaris granted to the petitioners right to take forest produce, mainly tendu leaves, from forests included in their Zamindaris. The agreements conveyed to the petitioners in addition to the tendu leaves, other forest produce like timber, bamboos, etc., the soil for making bricks, and the right to build on and occupy land for the purpose of their business. The petitioners relied upon the decision in Chhotabhai case. The court examined the terms of the agreements in question and concluded that under none of them was there a naked right to take the leaves of tendu trees together with a right of ingress and of egress from the land but there were further benefits including the right to occupy the land to erect buildings and to take other forest produce not necessarily standing timber, growing crop or grass. The court held that whether the right to the leaves could be regarded as a right to a growing crop had to be examined with reference to all the terms of the documents and all the rights conveyed there under and that if the right conveyed comprised more than the leaves of the tress, it would not be correct to refer to it as being in respect of growing crops simpliciter. The court came to the conclusion that what was granted to the petitioners was an interest in ‘immovable’ property.

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