The Transfer of Property Act, does not define movable property which has been defined in the General Clauses Act as meaning “property of every description except immovable property”.
S.P.K.N. Subramanian Firm v. M. Chidambrama, AIR, 1940 Mad 825: In this case, the defendant (tenants) were running a cinema and had for the purpose of generating electricity, installed an oil engine – fixed with nuts and bolts on a cement platform. The question arose as to whether a security bond pledging an oil engine installed as a part of cinema can be deemed to be a transaction relating to immovable property. The court observed that regard has to had not merely to the nature of attachment, by which engine was fixed on the ground, but also to the circumstances in which it came to be fixed. If the thing imbedded is for the permanent beneficial enjoyment of the immovable property to which it is attached, then it is immovable property. However, if the thing is fixed for a short period (though fixed for the time being so that it may be enjoyed) and the person using the same for beneficial enjoyment of thing itself (e.g. for the purpose of running other equipment) and not of the land, then it is movable property.
In the present case, the intention of the defendants was clear, viz. they did not treat engine as a part of the premises as they were under a lease and were expecting eviction from premises.
Md. Ibrahim v. Northern C.F. Trading Co. (Air, 1945 Mad 304) – In this case, the owner of a mill installed machinery on a cement platform held in position by iron pillars imbedded in the ground to a depth of about 6 feet. The plaintiff company invested money and later brought a suit for recovery of money and claimed a charge on machinery on the plea that it was a movable property.
The court held that the plant and machinery installed on a concrete floor had become immovable property (attached to something which is attached to earth). Moreover, the intention of the owner of mill was to use the machinery for the purpose of carrying on business for his own benefit i.e., for the permanent beneficial enjoyment of the mil.
Janam Chand v. Jugal Kishore – In this case, the machinery of a factory was fixed with nuts and bolts on the concrete floor of factory. The court held that the nature of structure on which the machinery was fixed shows that the object was to keep machinery intact, to prevent it from vibrating – thus for the enjoyment of machinery itself. The land was a mortgaged property (on monthly rent basis) and the mortgagee’s object was thus not for the permanent enjoyment of the land.
BAMADEV PANIGRAHI V. MONORAMA RAJ, AIR, 1974 A.P. 226
[Cinema equipments like projector, diesel engine etc. installed on the tenanted land temporarily, and, not only not attached to the earth, but also not permanently fastened to anything attached to the earth, are ‘movable’ properties. ]
In Mohammed Ibrahim v. Northern Circars Fibre Trading Co. (AIR, 1994 Mad. 492), held that the machinery installed on a cement platform and held in position by being attached to iron pillars fixed in the ground, was immovable property, as the annexation was made by the person who owned the building as well as the machinery.
The tests enunciated by the decide cases to determine the character and nature of the property are: (a) 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? (b) The degree and manner of attachment or annexation of the machinery to the earth.
DUNCAN INDUSTRIES LTD. V. STATE OF U.P. [(2000) 1 SCC 633]
[Whether a machinery embedded in the earth can be treated as movable or immovable property depends upon the intention of the parties which embedded the machinery and also the intention of the parties who intend alienating that machinery.]
The ‘standing timber’ includes the Babul, Shisham, Neem, Pipal, Banyan, Teak, Bamboo, etc. (as the wood of these trees is quite often used as a timber for construction purposes). The fruit bearing trees like Mango, Jamun, Jackfruit, Mahua, etc. are not standing timber but are considered as immovable property; however, such trees can be regarded as movable property if the intention is not to use them for the purpose of enjoying their fruits but to cut them down sooner or later for the purpose of utilising the wood as a timber.
In Shanta Bai v. State of Bombay (AIR, 1958, SC 532), The Supreme Court laid down some important propositions in regard to ‘standing timber’:
- Standing timber is different from a timber tree; the former refer to tree in such a state that if cut it could be used as timber, while the latter refers to a tree drawing sustenance from the soil. The Transfer of Property Act, excludes standing timber and not timber trees.
- For determining whether transfer relates to standing timber or not, the rule is – if the thing sold, is to continue to derive nutrition from the soil, it is immovable property. But if the thing is to be cut and removed immediately, and the land is only serving as a warehouse for the thing sold, then it is movable property.
A, the owner of a estate enters into a contract with B, and grants to him a right to enter his estate and to cut only standing timber for a period of six months. The right would be in movable property.
However, if A enters into a contract with B and grants to him a right to cut only timber trees that are in various stages of growth, the right is in immovable property, as the contract is for timber trees and not standing timber.
Growing crops – The term includes millets (wheat, sugarcane, etc.), pulses, creepers, vegetables like Lauki, Kaddoo etc. These crops do not have any independent existence beyond what is ‘final produce’. Therefore, the term ‘growing’ and not ‘standing’ is used; thus, these cropos need not be absolutely ready to be harvested (“standing crops”) to become movable property.
A right to rear corps, pluck fruits from trees, etc. would mean the sale of growing crops.
Grass – Grass can only be used as fodder. It’s not other use is possible. Therefore, it is movable. But a contract to cut the grass will be an interest in immovable and not an interest in chattel (movable property).
Illustration- A purchased from R by means of a registered sale deed a house for Rs. 5 lacs. Before purchase A has inspected the house and saw that the house has six ceiling fans and also a booster pump. When A took possession of the house he noticed that R had removed all the fans and the pump. R informed A that he had sold only the house but not the fans and pump. A seeks your legal opinion to the matter.
Section 8 of the Transfer of Property Act, reads: “Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee, all the interests which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, when the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and where the property is a machinery attached to the earth, the movable parts thereof; and where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith.”
In view of the Section 8, it was open to R to specifically exclude fans and pump, but he did not do so. Thus, A has the right over these items and can move the court for their recover.