TYPES OF

PROPERTY

Immoveable and Moveable

IMMOVEABLE PROPERTY: DEFINITIONS
General Clauses Act: “Immovable Property” shall include land, benefits to arise out of land, and things
attached to the earth, or permanently fastened to anything attached to the earth;
TOPA: “immoveable property” does not include standing timber, growing crops or grass
“attached to the earth” means—
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
Registration Act: 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;
MOVEABLE PROPERTY
General Clauses Act: “Movable property” shall mean property of every description, except
immovable property ;
Registration Act: “Movable Property” includes standing timber, growing crops and grass, fruit
upon and juice in trees, and property of every other description, except immovable property;
ANANDA BEHERA V. STATE OF ORISSA
The dispute is about fishery rights in the Chilka lake which is situate in what was once the estate of
the Raja of Parikud. This estate vested in the State of Orissa under the Orissa Estates Abolition Act,
1951 and has now ceased to exist in its original form. 
petitioners carry business of catching and selling fish particularly from fisheries within the said lake
long before vesting of the estate - petitioners had entered into contracts with the ex-proprietor and had
obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the
fish from the fisheries
licenses were acquired before the estate vested in the State of Orissa - State of Orissa refused to
recognise these licenses and were about to re-auction the rights 
JUDGMENT
Petitioner - transactions were sales of future goods, namely of the fish and fish is moveable
property - Act is confined to immoveable property
In India it is regarded as a benefit that arises out of the land and as such is immoveable property.
Court looked at definition under GCA and TOPA
As fish do not come under that category the definition in the General Clauses Act applies and as a
profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable property
within the meaning of the Transfer of Property Act.
tangible immoveable property – not in writing, no registration
SHANTABAI V. STATE OF BOMBAY
Petitioner’s husband - proprietor of certain forests granted to her the right to take and appropriate
all kinds of wood – Building wood, fuel wood and bamboos, etc.- from the forests from 1948 to
1960.
petitioner has paid Rs. 26,000 as consideration for the rights granted to her
Doc – not registered
Held: document only confers a right to enter on the lands in order to cut down certain kinds of trees
and carry away the wood.
Referred to Anand Behera case: profit a prendre because it is a grant of the produce of the soil
It is not a "transfer of a right to enjoy the immoveable property" itself – benefit arising out of land
TREES/ STANDING TIMBER: BOSE J.
Timber is well enough known to be wood suitable for building houses, bridges, ships etc., whether
on the tree or cut and seasoned.
"standing timber" - tree meant to be converted into timber so shortly that it can already be looked
upon as timber even though it is still standing
legal basis - trees that are not cut continue to draw nourishment from the soil
Doc. – for 12 years - not a mere sale of trees as wood. It is more. It is not just a right to cut a tree
but also to derive a profit from the soil itself - grant is not only of standing timber but also of trees
that are not in a fit state to be felled but which are to be felled gradually as they attain the required
girth
Other judges – rejected petition u/A 32
SURESH CHAND V. KUNDAN (2001)
Kundan and Mohar Singh were the co-sharers of a plot - executed an agreement for sale of the said
land in favour of the appellant
vendors did not execute the sale deed - appellant brought a suit for specific performance of
agreement for sale of the land.
During pendency before High Court, Mohar Singh executed sale deed with respect to his half share
Kundan filed an objection on the ground that what was agreed to be transferred was land and not
the trees - since the trees had not been agreed to be sold, possession of the land cannot be delivered
SECTION 8, TOPA
Unless a different intention is expressed or necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then capable of passing in the
property and in the legal incidents thereof. 
Such incidents include, where the property is land, the easements annexed thereto, the rents and
profits thereof accruing after the transfer.
when a vendor sells a property, he sells all his rights imbedded in the property unless specifically
or impliedly excluded – trees can be excluded by cutting them
As there is no special definition of immovable property, the general definition contained in
the General Clauses Act would prevail and, therefore, trees are regarded as part of land because
they are attached and rooted in the earth. 
DUNCAN INDUSTRIES LTD. V STATE OF UTTAR
PRADESH (2000)
ICI India Ltd. executed an agreement of sale - agreed to transfer as a going concern its fertilizer
business of manufacturing, marketing, distribution and sale of urea fertilizer in favour of M/s.
Duncans Industries Limited
agreement also stated that vendor would on the transfer date transfer the fertilizer business by
actual delivery of possession in respect of such of the estates and properties mentioned in the
agreement
term fertilizer business was defined to mean and include some lands and plant and machinery
relating to the Fertilizer business – Ammonia manufacturing plant
Stamp duty on plant and machinery – immoveable property?
CONTENTIONS
Appellant: intention of the parties who had treated the plant and machinery as movables. There is no
permanency of the substance are the intention was not to permanently attach it to the earth but to
avoid the wobbling of the machines and so movable and the excise duty is paid.
Referred to Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad where court held that
paper-making machines – not constitute immovable property
High Court: machineries which formed the fertilizer plant, were permanently embedded in the earth
with an intention of running the fertilizer factory
while embedding - intention of the party was not to remove the same for the purpose of any sale
either as a part of a machinery or scrap and in the very nature of the user of these machineries, it was
necessary that these machineries be permanently fixed to the ground.
HELD:
Agreed with HC - The question whether a machinery which is embedded in the earth is movable
property or an immovable property, depends upon the facts and circumstances of each case
court will have to take into consideration the intention of the parties when it decided to embed the
machinery whether such embedment was intended to be temporary or permanent.
Referred case: for operational efficiency – to prevent wobbling - machine attached to earth. If the
appellant wanted to sell the paper-making machine it could always remove it from its base and sell it
Present case – purpose for which these machines were embedded was to use the plant as a factory for
the manufacture of fertiliser at various stages of its production.
It cannot be said that the plant and machinery could have been transferred by delivery of possession
TRIVENI ENGINEERING & INDUSTRIES LTD. V.
COMMISSIONER OF CENTRAL EXCISE (2000)
appellants deal in turbo alternators which have two components : (i) steam turbine; and (ii) complete
alternator (also called Generator) - appellants manufacture steam turbine in their factories where excise
duty is paid on them
They purchase duty paid complete alternators which are delivered at the site of the customer.
show cause notices - appellants failed to declare manufacture of turbo alternators - liable to excise duty,
marketability and permanency and mobility of the substance. When dismantling then they are movable.
appellants resisted the claim on the ground that (i) a turbo alternator (are immoveable property and no
excise duty is then paid on the alternator) set comes into existence on its being fixed permanently on the
land as such it is not an excisable good but an immovable property and (ii) by the combination of steam
turbine and alternator, a turbo alternator emerges at the site of the customers which does not involve any
process of manufacturing - not liable to excise duty.
CONTENTIONS:
If an article is an immovable property, it cannot be termed as excisable goods
Petitioners: the process consists of combining and fixing of the two components permanently on
platform raised at the premises of the customers and thus what emerges is not goods but an
immovable property
Respondents: merely because the two components were fixed to the platform for efficient
functioning of a turbo alternator, it could not be said that it was an immovable property.
Issue - whether excise duty can be imposed on a turbo alternator under the Act?
HELD:
in an immovable property there is neither mobility nor marketability
Whether an article is permanently fastened to anything attached to the earth require determination
of both the intention as well as the fact of fastening to anything attached to the earth.
Cases referred: whether a petrol tank, resting on earth on its own weight without being fixed with
nuts and bolts, had been erected permanently without being shifted from place to place - test was
one of permanency; if the chattel was movable to another place in the same position or liable to be
dismantled and re-erected at the later place, if the answer to the former is in the positive it must be
a movable property but if the answer to the latter part is in the positive then it would be treated as
permanently attached to the earth.
OTHER REFERRED CASES:
Quality steel tubes v. Collector of central excise
whether the tube mill and welding head erected and installed by the appellant for the manufacture of tubes and
pipes out of duty-paid raw material were assessable to duty
marketable or capable of being brought to market - goods attached to the earth become immovable
erection and installation of a plant could not be held to be excisable goods and if such wide meaning was assigned,
it would result in bringing in its ambit structures, erections and installations.
Mittal engineering v. Collector of central excise
Mono vertical crystallisers used in sugar factories to exhaust molasses of sugar. The component parts cleared on
payment of excise duty - assembled, erected and attached to the earth at customers sugar factory - process involved
welding and gas cutting – Held: crystalliser had to be assembled, erected and attached to the earth by a foundation
and was not capable of being sold as it is.
PRESENT CASE: TRIBUNAL
fixing of steam turbine and alternator - necessitated by the need to make them functionally
effective to reduce vibration and to minimise disturbance to the coupling arrangements and other
connections
removal of the machinery does not involve any dismantling in the sense of pulling them down or
taking them to pieces but only undoing the foundation bolts arrangement by which they are fixed to
the platform and uncoupling of the two units - turbo alternator did not answer test of permanency
HELD:
common ground that a turbo alternator comes into existence only when a steam turbine & alternator
are fixed at the site and only then it is known by a name different from the names of its components
Findings recorded do not justify the conclusion of the Tribunal – on removal, a turbo alternator gets
dismantled into its components steam turbine and alternator. Tribunal did not keep in mind the
distinction between a turbo alternator and its components - test of permanency fails.
marketability test - turbo alternator has to be separated into its components - turbine and other
alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied.
Though, there is no finding that without fixing to the platform such turbo alternator would not be
functional, it is obvious that without fixing, it can hardly be functional.
EXPLANATORY NOTE BY THE HARMONIZED SYSTEM
OF NOMENCLATURE (HSN)
When generating sets consisting of the generator and its prime base mover are mounted together as
one unit on a common base; even if specially fitted out to accommodate machines or appliances,
cannot be regarded as a common base joining such machines or appliances to form a whole.
installation or erection of turbo alternator on the concrete base specially constructed on the land
cannot be treated as a common base and, therefore, it follows that installation or erection of turbo
alternator on the platform constructed on the land would be immovable property