immoveable property under tpa definition and case law

1. Introduction
The Transfer of Property Act was enacted in 1882. Prior to this, Common law principles have
governed the dealings and transfers of property. This act was formulated to govern the transfers
of property. This act however only governs transfers between two living parties commonly
known as an intervivous transaction. Also, the major focus of this act has been on the transfer of
immovable property though it is not exhaustive. Section 3 of The Transfer of Property Act,
1882 has been called ‘interpretation clause’. It lays down the statutory definitions of seven
terms which have been frequently used in the act. Through this article, the reader will be able to
understand these terms in a simple manner with different illustrations and some judicial
pronouncements that will further clarify the statute.
Definitions
There are 7 definitions that are given in this statute.
Immovable Property
The definition given in The Transfer of Property Act says that it does not include standing
timber, growing crops or grass. All these three items come under the scope of movable property.
The basic meaning that can be understood as immovable property is a property which is not a
movable property.
A fruit-bearing tree will not come under the ambit of standing timber and therefore be stated as
immovable property. Any tree which can be cut in a short period of time either for the purpose of
construction or anything else will be a standing timber. In the case of Jagdish v. Mangal Pandey
(1), the court held that to check whether a tree is a standing timber or not, two things are to be
ensured. First, the nature of the tree is to be taken into account and then the intention, whether
the owner has the intention to cut that property in a short period of time or not.
There is another definition of immovable property that is given in the General Clauses Act
which can be used to understand the concept of immovable property.
Section 3 (26) of this act defines an immovable property, it says that this property consists of:
1. Any land, building or etc.,

2. 2. Benefits arising out of land and
3. Things attached to Earth.
One of the leading cases where the immovable property was defined in the case of Sukry
Kurdepa v. Goondakull (2), where Justice Holloway opined that if a thing is not changed or
altered from its initial place without causing any harm to the property, it is called an immovable
property
(A)Land: It means a determinate portion of the earths surface, which may be covered by water,
the column of surface above the surface, the ground beneath the surface. All the objects which
are on or under the surface in its natural State are included in the term land. Also all objects
placed by human agency on or under the surface with the intention of permanent annexation are
immovable property, e.g., Building, wall, fences.
(B) Benefits to arise out of land: Apart from physical point of view, every benefits arise out of
land is also regarded as immovable property. Registration Act also includes as immovable
property benefits to arise out of land, hereditary allowances, right of way, lights, ferries and
fisheries. In Anand Behera v. State of Orissa, AIR 1956 SC 17, the right to catch away fish from
chilka lake, over a number of years, was held to be an equivalent of profits a pendre in England
and a benfits to arise out of land in India. Similarly, a right to collect a rent and profits of
immovable property, right to collect dues from a fair or heat or market on a land are immovable
property.
(C)Things attached to earth: Section 3 of transfer of property defines the expression ‘attached to
earth’ as including (1) things rooted in the earth, (2) things embedded in the earth, (3) things
attached to what is so embedded, and (4) chattel attached to earth or building.
(1) Things rooted in earth include trees and shrubs, except standing timber, growing crops and
grasses (Section 3, TPA). Whether tress regarded as movable or immovable depends upon the
circumstances of the case. If the intention is that trees should continue to have the benefit of
further sustenance or nutriment by the soil (land), e.g., enjoining their fruits, then such tree is

3. immovable property. But if the intention is to out them down sooner or later for the purpose
utilising the wood for building or other industrial purpose, they would be timber and of
accordingly be regarded as movable property (Shantabai v. State of Bombay, AIR 1958 SC 532)
determining whether the tree is movable or immovable, the intention if party is important if the
parties intend that the tree should continue to have the benefit of further nutriment to be afforded
by soil, the tree is immovable property. But if intention is to withdraw the tree from land, and the
land is providing it only as a warehouse, it is to be treated as movable property.
in the of Jagdish v. Mangal Pandey, where the court held that nature and intention are to be seen
to determine whether it is movable or immovable. If the intention is to maintain the tree for a
long period of time without cutting it down for any other purpose, then it will come under things
rooted into the earth and hence in immovable property.
(2)Things embedded in earth: It includes such things as house, buildings, etc., however certain
things like an anchor imbedded in the land to hold a ship is not a immovable property’ to
determine whether such things are movable or immovable property, depends upon circumstances
of each case and there are two main conditions to indicate intention:
the degree or mode of annexation, e.g. tie-up seats fastened to the floor of cinema halls are
immovable property on brick-work and timber and tepestries;
the object of annexation, for, e.g., Blocks of stone placed one on the top of other without any
mater or cement for the purpose of forming a dry wall, will become part of land, so immovable
property, but not the stones deposited in the builder’s yard.
here are two tests to determine whether any property is embedded in earth or not. They are:
It means that when the removal of any property annexed or embedded will not cause any harm to
the land. If it does cause, then it will come under the ambit of immovable but if it does not and
can easily be detached, it will come under a movable property.

4. If the object of annexing or embedding the property is for usage for a long period of time. For
example. If a tenant for life attaches bolts to tighten any object in the home, it will come under
immovable because the intention of it is to use it for a long period of time.
In the case of Duncun Industries v. State of U.P. , where the company had to pay stamp duty on
their property. They gave stamp duty on the value of the land without including the value of the
plant and machinery on the property to produce goods. Court held that they were liable to pay
stamp duty on the value of their land and which included the value of their plant and machinery
as it would come under the ambit of things attached to what is so embedded in the earth. Any
property of which, the intention is to maintain it for a long period of time and in this case, it was
being used by the industry to produce different goods, this will come under an immovable
property
(3) Things attached to what is so embedded must be for the permanent beneficial enjoyment of
the to which it is attached, as section says for, e.g., door and windows of a house are immovable
property to be permanent, like electric fans or widow blinds, they are movable property.
(4)Chattel attached to earth or building if a chattel, i.e., movable property is attached to earth or
building, if is immovable property. The degree, manner, extent and strength of attachment are the
main features to be regarded in determining the question. Standing timber, growing crops and
grasses are regarded as severable from land and they are regarded as movable property. However
if they and the land on which they stand is sold, such standing timber, growing crops or grasses
will pass to purchases.