INTRODUCTION

Property has a very wider meaning in its real sense. It not only includes money and other tangible
things of value, but also includes any intangible right considered as a source or element of income or
wealth. The right and interest which a man has in lands and chattels to the exclusion of others. It is
the right to enjoy and to dispose of certain things in the most absolute manner as he pleases,
provided he makes no use of them prohibited by law.

The Term “Immovable Property” occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property is the
Transfer of Property Act (T. P. Act).

Meaning and Definition of Property

Meaning of property

In general sense, property is any physical or virtual entity that is owned by an individual or jointly by
a group of individuals. An owner of the property has the right. Human life is not possible without
property. It has economic, socio-political, sometimes religious and legal implications. It is the legal
domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control
of an individual over some ‘thing’. Here the most important aspect of the concept of ownership and
property is the word ‘thing’, on which a person has control for use. To consume, sell, rent, mortgage,
transfer and exchange his property. Property is any physical or intangible entity that is owned by a
person or jointly by a group of people. Depending on the nature of the property, an owner of property
has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to
exclude others from doing these things. [1]

There are some Traditional principles related to property rights which includes include:

1. Control over the use of the property.

2. Right to take any benefit from the property.

3. Right to transfer or sell the property.

4. Right to exclude others from the property.

Definition of property

There are different definitions are given in different act as per there uses and needs. But in the most
important act which exclusively talks about the property and rights related to property transfer of
property act 1882 has no definite definition of the term property. But it is defined in some other act
as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and
includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:
“Property” means the general property in goods, and not merely a special property.

Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the concept of
property properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory ( Jenks, Laski):

5. Philosophical Theories–

(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Kinds of property

Broadly Property is divided into three kinds those are as follow:

Movable and Immovable property

Movable property

The definition of movable property is given differently in many acts. Some of the definitions are as
follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in trees,
and property of every other description, except immovable property."

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every description,
except land and things attached to the earth or permanently fastened to anything, which is attached
to the earth.

Things attached to the land may become moveable property by severance from the earth.for
example Cart–loaded of earth, or stones quarried and carried away from the land become movable
property.

Immovable property

The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property is the
Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.
Under TPA

Section 3 provides “”immovable property” does not include standing timber, growing crops or
grass;” The definition is not comprehensive, and it just says that standing timber, growing crops and
grass are not immovable property.

Under Indian Registration Act

Section 2 (6) says “”immovable property” includes land, buildings, hereditary allowances, rights to
ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the
earth, or permanently fastened to anything which is attached to the earth, but not standing timber,
growing crops nor grass; (6) “immovable property” includes land, buildings, hereditary allowances,
rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached
to the earth, or permanently fastened to anything which is attached to the earth, but not standing
timber, growing crops nor grass;” thus the definition is not exhaustive, and it is somewhat related to
definition of TPA

Under General Clauses Act:

Section 3 (26) says “immovable property” shall include land, benefits to arise out of the land, and
things attached to the earth, or permanently fastened to anything attached to the earth;” thus
according to this definition immovable property include

1. Land

2. Benefits arising out of the land

3. Things attached to the earth

Combining all the 3 acts the meaning of the immovable property include

1. Land

2. Benefits arising out of the land

3. Things attached to the earth

1. Things Embedded in earth

2. Things attached to what is so embedded in the earth

3. Things rooted in the earth, except:-

1. Standing timber,

2. Growing crop

3. Grass

Land

The land includes everything on the surface, below the surface and above the surface of the land.
Anything, till it is not removed from the land, will be considered as the immovable land.

Benefits arising out of the land

Property may be classified as

1. Tangible property/ corporeal property

2. Intangible property/ incorporeal property

Tangible properties are all those properties which can be touched or which have physical existence.
Intangible property is the exact opposite, and thus they have no physical existence and hence they
cannot be touched and have no physical existence. They are in the form of some rights or benefits
which a person gets from land. Therefore any right by which a person makes profit or gain is known
as his beneficial rights.

Thus a benefit arising out of land will also be immovable property. It is so because it is incidental to
earth and it cannot be served from it. Right to capture fishes from the lake is an example of benefit
arising out of the land.

Profit a prendre

It is the English concept which is very similar to benefits arising out of the land

Things necessary for it includes

1. The person claiming must have interest in the land

2. It must respect of a procedure or profit of the soil.

Profit a prendre is a right to take something of another person’s land. It is right to enter another
person’s property and to make some benefit from the soil.

Case Laws

Anand Behra vs State of Orissa (AIR 1956 SC 17)

The court held that the right to enter the Chilka Lake and catch fish for five years is equivalent to
profit a prendre in England and a benefit arising out of land in India and thus it is immovable
property.

SMT. Shantabai vs state of Bombay (AIR 1958 SC 532)

The court held that right to enter the land, cut and carry away wood over a period of 12 years is
benefit arising out of land and hence immovable property.

Duncans Industries LTD vs State of UP (2000) 1 SCC 633

Company A decided to sell its fertilisers business to company B. it included land and machinery. The
sale agreement was executed. The stamp duty of 37 crores was levied. Aggrieved by the order, the
parties went to the court

The court held that, The machinery that is embedded in the earth is embedded as having permanent
use of it. It is not possible to remove them without causing severe damage to the land. Hence it
should be considered as immovable property.
Things attached to Earth

Things attached to earth includes

1. Things rooted in earth

2. Things embedded in earth

3. Attached to what is so embedded for permanent beneficial enjoyment of that to which it is

attached

Things rooted in Earth

General Rule: The general rule is that all the things that are attached to the earth are said to be
attached to the earth. Thus all the plants, trees are permanently attached to the surface and will be
considered as immovable property.

Exception: Growing crops, Grass and standing timber though rooted in the earth are considered as
movable property.

Standing Timber vs Fruit bearing trees: Timber is useful for construction of houses, but for that, it
has to be cut and served from the land and then only it can be used, that is why it is considered as
movable property

On the other hand, trees bearing fruits are useful when they are rooted in the earth, and that is why
they are regarded as immovable property.

Things embedded in the earth

Things which are fixed below the level, to which it will go by its weight are considered as things
embedded in the earth. The concept intends to include those that are manually or mechanically put
down deep in earth much beyond what would it otherwise go by its weight.

Where the things are just placed without the intention of making them part of the land, they are
treated as movable property. The main thing that is needed to consider whether the property is
movable or immovable is the intention of the parties.

The general rule is that what is annexed to the land becomes part of the land. But it is nearly
impossible to accurately tell the degree on annexation required to consider it as immovable
property.

Degree and mode of annexation

It is an essential factor to be considered, and it helps us to tell that if an object is movable or

immovable. If a thing cannot be removed without causing severe damage to the land, then it is
considered that the object has been embedded in perpetuity and it has to be treated as immovable
property.

Object of annexation

It is a more critical element to determine whether the purpose is to be treated as movable property
or immovable property. We have to gather the intention of the parties to decide it. Further, what is
the object for which it has been done? If the purpose is to use it on a permanent basis, then it will be
considered as immovable property.

Things attached to what is so embedded

The test for it is

1. The thing must be attached permanently

2. Must be attached for the beneficial enjoyment of house or building or to which it is attached

They have no separate existence of their own and form part of the house. The word ‘permanent’ and
‘beneficial enjoyment’ must be read together. The attachment must be permanent and for the
beneficial enjoyment of the thing to which it is attached.

Doctrine of Fixtures

Under 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 help of two
maxims

1. Quic quid plantatur solo solo credit: Whatever is planted in earth becomes part of the earth.

2. Quic quid inaedificatur solo solo credit: whatever is built into or embedded into or attached
to soil becomes part of the land.

The law of fixture does not strictly apply to India.

CONCLUSION

Any rights in or with respect to any land or any building or part of building (whether or not including
any machinery, plant, furniture, fittings or other things therein) which has been constructed or
which is to be constructed, accruing or arising from any transaction (whether by way of becoming a
member of, or acquiring shares in, a co-operative society, or other association of persons or by way
of any agreement or any arrangement of whatever nature, not being a transaction by way of sale,
exchange or lease of such land, building or part of a building.