PROPERTY LAW

Project on
IMMOVABLE PROPERTY-

ANALYTICAL APPROACH.

Submitted to- Submitted by-

Dr. Jaswinder Kaur Shubham Tanwar

18020
Group 3

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB 2019-20
Contents
1. INTRODUCTION ...................................................................................................................... 3

1.1 Origin .................................................................................................................................... 4

1.2 Definition of Property ........................................................................................................... 4

2. IMMOVABLE PROPERTY ...................................................................................................... 5

2.1Definition of immovable property in different statutes ......................................................... 5

3. EXAMPLE OF IMMOVABLE PROPERTY............................................................................. 9

4. CASE LAWS ANALYSIS ......................................................................................................... 9

4.1 Anand Behra vs State of Orissa ............................................................................................ 9

4.2 SMT. Shantabai vs state of Bombay ................................................................................... 10

4.3 State of Orissa vs Titaghur paper mills ............................................................................... 11

4.4 Ramdev vs Manorma .......................................................................................................... 12

4.5 Duncans Industries LTD vs State of UP ............................................................................. 13

5. CONCLUSION ......................................................................................................................... 14

6. BIBLIOGRAPHY ..................................................................................................................... 15

6.1 Books .................................................................................................................................. 15

6.2 Articles ................................................................................................................................ 15

1. INTRODUCTION
The word property is used in numerous senses in general. If one looks around in the surroundings,
everything available may be categorized as Property. Every object, whether tangible or intangible
having some value to human beings, may be termed as Property. The essential characteristic of
Property is the value attached to it. In one way or the other, it is a source of wealth. The value,
although may be either monetary or personal. In a general sense, therefore Property consists of
land, shares, buildings and debts due to another person. However, the term when used in the legal
sense has a definite connotation. It is the right to enjoy and to dispose of certain things in an
absolute manner as one thinks it fit. 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 others1. 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 sea,
the air, and the like, cannot be appropriated; every one may enjoy them, but no one has any
exclusive right in them. When things are fully our own, or when all others are excluded from
meddling with them, or from interfering about them, it is plain that no person besides the
proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him
from disposing of them as he pleases; so that property, considered as an exclusive right to things,
contains not only a right to use those things, but a right to dispose of them, either by exchanging
them for other things, or by giving them away to any other person, without any consideration, or
even throwing them away. Basically Property is divided into real property, and personal property. 2
Property is also divided, into absolute and qualified, when it consists of goods and chattels.
Absolute property is that which is our own, without any qualification whatever; as when a man is
the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal,
which never had its natural liberty in a wild state. Qualified property consists in the right which

1
Bradbrook, A. (2014). PROPERTY LAW AND ENERGY LAW: ONE ACADEMIC’S PERSPECTIVE.
In Babie P. & Leadbeter P. (Eds.), Law as Change: Engaging with the Life and Scholarship of Adrian
Bradbrook (pp. 257-282). South Australia: University of Adelaide Press. Retrieved March 12, 2020,
from www.jstor.org/stable/10.20851/j.ctt1sq5xcn.15
2
Yuan, B., Connolly, K., & Bell, M. (2009). A Compendium of Countries with an Area-Based Property
Tax (pp. 82-85, Rep.). Lincoln Institute of Land Policy. Retrieved March 12, 2020, from
www.jstor.org/stable/resrep18292.18
men have over wild animals which they have reduced to their own possession, and which are kept
subject to their power; as a deer, a buffalo, and the like, which are his own while he has possession
of them, but as soon as his possession is lost, his property is gone, unless the animals, go animo
revertendi. Property is again divided into corporeal and incorporeal. The former comprehends such
property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter
consists in legal rights, as chooses in action, easements, and the like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he also
loses his property or right in the thing: animals ferae naturae, as mentioned above, belong to the
owner only while he retains the possession of them. But, in general,' the loss of possession does
not impair the right of property, for the owner may recover it within a certain time allowed by law.

1.1 Origin

The word “property” is derived from the Latin word proprietary and the French equivalent
properties, which means a thing owned. The concept of property and ownership are very similar
to each other. However, there is a fine line that distinguishes the two terms. It will not be incorrect
to state that humans have been aware of their rights to possess what they rightfully own for long.
The term property has been widely interpreted by various jurists such
as Salmond, Bentham and Austin. Close observation of the definitions given by them will help
us understand the concept in a better manner.

1.2 Definition of Property

Eminent jurist Salmond while defining the term property, observed that the term might be
understood in one of the three senses mentioned below:

(i) The term property includes all the legal rights of a person. That is to say that it includes complete
ownership of a man on material as well as incorporeal things.

(ii) The term includes not a man’s personal rights, but only his proprietary rights.

(iii) The term includes the rights of ownership in material things such as building etc. According
to another jurist, Bentham, the term property includes ownership of material objects alone. He
has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the
greatest right of enjoyment known to the law, including servitudes. The Property includes both
proprietaries as well as the personal rights of a man. 3

2. IMMOVABLE PROPERTY
2.1Definition of immovable property in different statutes

The meaning of property is given in Transfer of property Act, general clauses act, Indian

registration act.

Under TPA

Section 3 provides “”immovable property” does not include standing timber, growing crops or
grass;”4 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:

3
Wolfe, A. (1961). REAL PROPERTY LAW DIVISION. Newsletter of the Section of Real Property,
Probate and Trust Law, 2(1). Retrieved March 12, 2020, from www.jstor.org/stable/44506288
4
Transfer of property act 1882.
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

 Land
 Benefits arising out of the land
 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
4. Things Embedded in earth
5. Things attached to what is so embedded in the earth
6. Things rooted in the earth, except:-
Standing timber,
Growing crop
Grass

1. 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.
2. BENEFITS ARISING OUT OF THE LAND

Property may be classified as

Tangible property/ corporeal property
Intangible property/ incorporeal property
Tangible properties are all those properties which can be touched or which have physical
existence.5 Intangible property is the exact opposite, and thus they have no physical existence and

5
Ibid.
hence they cannot be touched and have no physical existence.6 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. 7
Profit a prendre It is the English concept which is very similar to benefits arising out of the land
Things necessary for it includes The person claiming must have interest in the land. 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.

3. THINGS ATTACHED TO EARTH

Things attached to earth includes, Things rooted in earth,Things embedded in earth

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.

6
Ibid.
7
BALGANESH, S. (2015). Codifying the Common Law of Property in India: Crystallization and
Standardization as Strategies of Constraint. The American Journal of Comparative Law, 63(1), 33-
76. Retrieved March 12, 2020, from www.jstor.org/stable/26386648
4.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.

5. THINGS ATTACHED TO WHAT IS SO EMBEDDED

The test for it is- The thing must be attached permanently 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.8

8
Sankaranarayanan, G. (2011). The Fading Right to Property in India. Verfassung Und Recht in
Übersee / Law and Politics in Africa, Asia and Latin America, 44(2), 220-236. Retrieved March 12,
2020, from www.jstor.org/stable/43239608
3. EXAMPLE OF IMMOVABLE PROPERTY.
The immovable property is not easy to transport from one place to another. If transported, it can
lose its original shape, volume, quantity or quality.Common examples can be land, houses, trees
attached to the ground. Mango trees, if sold for nourishment and for fruits can be considered as
immovable property. Cutting the bamboos for a number of years under a contract comes under the
immovable property.Whenever an immovable property is transferred, it is compulsory to get it
registered under the Indian Registration Act, 1908, if its value exceeds Rs. 100.The immovable
property is not subject to sales tax. But you have to pay stamp duty under the Indian Stamp Act
1899 and a registration fee is to be paid under the Indian Registration Act 1908.Mere delivery is
not enough to consider the transfer a valid transfer. The registration of property is compulsory in
name of the transferee. The immovable property forms an increase to an ancestral impartible
estate.9

4. CASE LAWS ANALYSIS

4.1 Anand Behra vs State of Orissa 10

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.

Facts of the case: The petitioners obtained oral licenses for catching and appropriating fish from
specified sections of the Chilka Lake from its proprietor, the Raja of Parikud, on payment of vast
sums and obtained receipts with the prevailing practice. This was before the passing of the

Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of
Orissa. The licenses, however, were in respect of years after such vesting. The State of Orissa
refused to recognise them and was seeking to the reaction the rights of fishery. The petitioners

9
Supra note 5.
10
(AIR 1956 SC 17)
contended that it had thereby infringed or was about to violate their fundamental rights under Arts.
19(1)(f) and 31(1) of the Constitution and claimed that the transactions being sales of future goods,
namely, the fish, the Act which was confined to had no application.

Held: Held, that the right sought to be acquired by the petitioners by their several purchases
was not in respect of any future goods as claimed by them but was a license to enter on the
land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre
which is immovable property within the meaning of the Transfer of Property Act read with s.
3(26) of the General That as the sale of the profit a prendre in the present cage was valued at more
than one hundred rupees and was effected without writing and registration it contravened s. 54 of
the

Transfer of Property Act, and so no title or interest herein passed to the petitioners, and
consequently, they had no fundamental rights to enforce.

4.2 SMT. Shantabai vs state of Bombay11

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.

Facts: By an unregistered document the husband of the petitioner granted her the right to take
and appropriate all kinds of wood from undisturbed forests in his Zamindary. With the passing
of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands)
Act, 1950, all proprietary rights in land vested in the State under s. 3 Of that Act and the
petitioner could no longer cut any wood. She applied to the Deputy Commissioner and obtained
from him an order under s. 6(2) of the Act permitting her to work the forest and started cutting
the trees. The Divisional Forest Officer took action against her and passed an order her name
might be the cut materials forfeited. She moved the State Government against this order but to
no effect.

Issues:

11
(AIR 1958 SC 532
Whether A right to enter on land to cut and carrying away timber standing on it is a benefit
arising out of land?

Whether it will be regarded as immovable property according to section 3(26) of general clauses
Act?

What is the difference between standing timber and tree

Held: It is needed to be taken into consideration that the period of grant for cutting of trees is 12
years. Hence the trees which will be perfect for cutting after 12 years are not fit to cut right now.
Thus it is not the mere sale of trees as wood but much more than that. Therefore it means that
they are not to be converted into the timber on an early date and the intention is that they should
continue to live and derive nourishment and benefit from the soil.

4.3 State of Orissa vs Titaghur paper mills 12

A contract for felling, cutting and removing bamboo from forest areas to convert the bamboo in
paper pulp which several ancillary rights have been held to be benefits arising out of the land.

Facts: On December 29, 1977, the Orissa Sales Tax (Amendment) Ordinance, 1977 was
promulgated amending the Orissa Act with effect from January 1978. With effect from the same
date two notifications SRO No 900177 and SRO No. 901177 were issued;

The first notification which was published under the provisions of section 3B and in supersession
of all previous notifications on the subject declared that mentioned in Column (2) of the schedule
to the notification were liable to be taxed on the turnover of purchase with effect from January
1, 1978. Entries 2 and 17 in the schedule of this notification specified “bamboos agreed to be
severed” and “agreed to be severed” respectively. Notification No. 901/77 issued under section
5 (1) was in supersession of all previous notifications in that regard. The State Government,
by this notification, directed that with January l 1978 the tax payable by a dealer under the Orissa
account of purchase of goods specified in column (2) of the schedule to the notification would be
at the rate determined against it in column (3) thereof. The price of purchase tax for bamboos

12
(AIR 1985 SC 1293
agreed to be severed, and standing trees agreed to be severed prescribed at 10%. The repealed
and replaced by Orissa Sales Tax (Amendment) Act of 1978. A large number of writ petitions
were filed before the High Court impugning the notifications dated May 23, 1977, and December
29, 1977. One group of petitioners consisted of those who had entered into agreements with the
State for the felling, cutting, obtaining and removing bamboos from forest areas for the
manufacture of paper (bamboo contracts), and the other group consisted of those who
had entered into agreements for the purchase of standing trees (Timber Contracts). The
bamboo contracts were a grant of exclusive right and license to fell, I cut and from the forest.
Under the terms of the auction, the respondent was bound to pay a minimum royalty irrespective
of the number of bamboos cut and removed. The Governor of the State was called the “grantor”
of the licence. The bamboo contracts were in respect of different areas for periods ranging from
11 to 14 years with an option to renew the agreements for further periods.

Legal Issues: What falls to be determined is the subject-matter of the impugned provisions.
Whether these contracts were related to immovable property or movable property?

Held: In addition to the rights to enter upon the land for the above purpose, other vital rights are
flowing from the Bamboo contract which makes it clear that the Bamboo contract granted was a
benefit arising out of the land which is immovable property.

4.4 Ramdev vs Manorma 13

Facts: Plaintiffs husband had obtained a possessory mortgage on a piece of land and was
running a touring cinema on it. He had purchased a projector and diesel engine oil. The
equipment was embedded into the land. The name of the cinema was “Kumar Touring

Cinema”. Finding no time to manage the cinema concern the entrusted the management
of the trust and confidence in him. The defendant taking advantage of his position, as

being the person in control, conspired with the Raja Saheb of Mandesa and got an
endorsement, of discharge made on the mortgage bond dated 1-9-1957 and

13
AIR 1974 AP 226
subsequently obtained the mortgage in his name on 6-3-1961. The plaintiff’s husband

had issued a notice on 5-5-1961 calling upon the defendant to render a correct account
of the management of the cinema concern and demanding from him the payment of Rs.

15,000/- previously advanced by him and to deliver possession of the entire cinema
concern including the machinery, equipment, records etc., and also the site. The

defendant, by his reply dated 2-6-1961, denied has liability either to account for the
management of Kumar Touring Talkies or to the return of Rs. 15,000/- alleged to have

been advanced by the plaintiff’s husband. Though the claim of the plaintiffs’ husband was
denied categorically by the defendant as early as 2-6-1961, no suit had been filed by him

during his lifetime for the recovery of possession of the cinema equipment or
improvement of the amount advanced by him.

Submission of parties: the defendant/appellant contended that the pieces of equipment

are movable property and they just do not become immovable just because they are
embedded in the earth. They are embedded for the enjoyment of equipment and not of

the land. Hence the suit is barred by the limitation that is three years for movable property.
Cause of action arose in 1961 and lawsuit was filed in 1966

Issues: Whether limitation prohibits the suit? Thus whether the equipment is movable or
immovable property

Held: the cinema built is a temporary cinema, and this can be gathered from the name
of it that is ‘Kumar touring talkies’. Further, the land was of someone else, and it was just
being used as mortgage land. Thus the submission of the defendant is accepted

14
4.5 Duncans Industries LTD vs State of UP

14
(2000) 1 SCC 633
Facts: 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

Issues: Whether the machinery and equipment are movable or immovable property?

Held: 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.

5. CONCLUSION
Significance and importance of property in the present materialistic world is verifiable. Property
related disputes dominate the courts among strangers, former friends and relations who fight tooth
and nail with fret and flume wasting several precious years. Property can be transferred in several
ways, and in India, the conveyance of title is not subject to one piece of legislation. Therefore,
there are different laws regulating the transfer of title from one person to another in relation to the
property depending on the mode of conveyance. The Transfer of Property Act deals primarily with
the transfer of immovable property and immovable property. Some of its provisions however, often
relate and regulate the transfer of movable property. The existence of concept of property is from
the ancient period. This concept has a very broad history. There are many philosophies laid down
by many thinkers like Bentham, Laski. These philosophies are very helpful in understanding the
concept of property. The main finding was that the term property is defined in different ways in
each act as to its use. As in Sale of Goods act 1930 it is defined differently than in Benami
Transactions (Prohibition) Act, 1988. In transfer of property act which is most important act which
deals with property does not have definition of the term property. There are many kinds of property
as to it uses.
6. BIBLIOGRAPHY
6.1 Books

Tripathi, G.P. The Transfer of Property Act, (Allahabad: Central Law Agency) 2008.
Sarathi, P. Vepa, Law of Transfer of property, (Lucknow: Eastern book company) 2010.
Shukla, S.N. Transfer of Property Act, (Allahabad: Allahabad Law House) 2008.
Saxena, Poonam Pradhan, Property Law

6.2 Articles

Yuan, B., Connolly, K., & Bell, M. (2009). A Compendium of Countries with an Area-
Based Property Tax (pp. 82-85, Rep.). Lincoln Institute of Land Policy. BALGANESH,
S. (2015).
Codifying the Common Law of Property in India: Crystallization and Standardization as
Strategies of Constraint. The American Journal of Comparative Law, 63(1), 33-76.
Sankaranarayanan, G. (2011). The Fading Right to Property in India. Verfassung Und
Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 44(2), 220-236.
Bradbrook, A. (2014). PROPERTY LAW AND ENERGY LAW: ONE ACADEMIC’S
PERSPECTIVE. In Babie P. & Leadbeter P. (Eds.), Law as Change: Engaging with the
Life and Scholarship of Adrian Bradbrook (pp. 257-282). South Australia: University of
Adelaide Press.
Wolfe, A. (1961). REAL PROPERTY LAW DIVISION. Newsletter of the Section of
Real Property, Probate and Trust Law, 2(1).