Transfer of Property Act

Things Attached to Earth: Rooted into earth, embedded into earth, and things attached to what is
embedded for permanent enjoyment of property.
How do you understand immovability in the form of attachment?
Th concept of attachment arises out of an English maxim. 2 maxims: ‘Doctrine of Fixtures’ – All
things rooted/embedded in the earth are a part of the land. It was also mentioned that as and
when the land passes, all these interests will also pass with the land.
Case Laws:
1. Bandeh Panigiri v. Manorama Raj, AIR 1974 AP 226
Facts: The plaintiff is A, respondent B. A’s husband has acquired a property for mortgage. It
was a possessory mortgage. The husband went on the construct a cinema hall to enjoy the
property, and purchase a lot of equipment’s and machines for the cinema, and erected onto the
land with the theatre. A Cinema projector was also purchased. XYZ was appointed as a trustee to
manage the hall. The trustee usurped the land illegally from the husband, and changed the deed
with his own name illegally. He hatched this plan with the mortgagee for all this. It was showed
on papers as if he was the mortgager. He started using it a the mortgager. The husband served the
notice, no reply. On the husbands death after 3years, the wife filed a came after 2 years.
Therefore the case comes after 5 years for recovery of possession of property and compensation.
Issue: The Limitation Act provided at that time that for movable property, the case is to be filed
within 3 years from notice. But for immovable property, it was 2 years. Therefore, for the
theatre, equipment’s, projector, etc., whether they’re movable or immovable?
Held: The judgement discuss a lot of concepts. While determining what is movable and
immovable, they went on to determine what is attached to the earth. In this, they adopted this
common law maxim. There are 2 important tests:
For anything to be attached to the property, it is important that there should be an intention on
the part of the parties that the properties attached to the immovable property should be that he is
using it in such a way that he can permanently attached to the land. What is the purpose of the
property? Is the land a material part of the machinery in it’s use/ And second, how it is attached,
the physical attachment. Will it crate any destruction to the land if it is severed off?
The court said that since it was a mortgage, it is temporary use. Also, after every year, a lisence
was to be renewed. Therefore, this shows that there is no certianty. Always uncertain if the
lisecne will be renewed or not. Also, the thearte was used as a touring talkie, moving from one
ara to other. Therefore, no intention on the part of the parties to use it in an immovbable sense.
Therefore, it is not attached to the earth in the sense of the TOPA.
Case: Duncans Industries v. State of Uttar Pradesh, 2000 SCC 633.
Facts: A and B. A company ‘A’ agree to sell off it’s fertilizer business to another company
called B. While transferring this, they agreed a future date on which they wil sell off. They had
also agreed in the initial agreement that along with the fertilizer business, plant and machinery
and various the immovable properties will be transferred, including the goodwill. When finally
the transfer took place, the government valued property for taxation, and realized that a particular
stamp duty was not paid by the party, along with the penalty for non-payment.
Issue: Whether the machinery and equipment are movable or immovable property? The subject
matter of stamp duty is only immovable Property. The party alleged that plant is a moveable
property.
Held: The use of the machinery was so much dependent on the factory and the place, that you
can never use the machinery independent of the factory. You cannot severe it off, the use of
machinery itself meant that you’re using the factory land also. The property may be considered
as embedded into the earth or attached into the earth. Therefore, it is immoveable property.
“What is attached to what is so embedded”
It only includes those things which is so embedded which are for the permanent enjoyment. The
criteria is whether the land is being used for not, or the benefit of the land is being used or not.
The land must be used therefore. The ends should be
Attestation
 Attestation means witnessing a certain event. It is a requirement where the witness signs
a document. Whenever a property is being transferred, there is a mandatory requirement
for the witness to be there, who want to attest to the fact that the executioner have
properly signed and given there voluntary instruction.
 It is retrospective in it’s application. [introduced by an amendment]
 All that is required by the attestor is to sign the document. No further clarification given
in this regard.
 There is nothing in this section which puts any qualification o the attestor.
 The only qualification is that the party itself is not the attestor.
 No time is mentioned, wen is tit o be done?
 Manner of Attestation: ML Abdul Jabbar Sahib v. MV Venkata Sastri, AIR 1969 SC
1147.
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