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    Transfer of Property: Topic 1. Movable and Immovable Property

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    Manjare Hassin Raad
    This document discusses the distinction between movable and immovable property under Indian law. It begins by explaining that the Transfer of Property Act only governs the transfer of immovable property, while movable property is governed by the Sale of Goods Act. It then discusses how immovable property is defined under various Acts to include land, things attached to the land, and benefits arising from land. It provides examples to illustrate fixtures and interests that constitute immovable property. The document also discusses how to determine if a movable item has become immovable by using tests based on the degree of attachment and purpose of attachment. It concludes by distinguishing key differences between movable and immovable property.

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    Transfer of Property: Topic 1. Movable and Immovable Property

    Uploaded by

    Manjare Hassin Raad
    1K views28 pages
    This document discusses the distinction between movable and immovable property under Indian law. It begins by explaining that the Transfer of Property Act only governs the transfer of immovable property, while movable property is governed by the Sale of Goods Act. It then discusses how immovable property is defined under various Acts to include land, things attached to the land, and benefits arising from land. It provides examples to illustrate fixtures and interests that constitute immovable property. The document also discusses how to determine if a movable item has become immovable by using tests based on the degree of attachment and purpose of attachment. It concludes by distinguishing key differences between movable and immovable property.

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    Tp 001movableandimmovable 140119045557 Phpapp02

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    This document discusses the distinction between movable and immovable property under Indian law. It begins by explaining that the Transfer of Property Act only governs the transfer of immovable property, while movable property is governed by the Sale of Goods Act. It then discusses how immovable property is defined under various Acts to include land, things attached to the land, and benefits arising from land. It provides examples to illustrate fixtures and interests that constitute immovable property. The document also discusses how to determine if a movable item has become immovable by using tests based on the degree of attachment and purpose of attachment. It concludes by distinguishing key differences between movable and immovable property.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    1K views28 pages

    Transfer of Property: Topic 1. Movable and Immovable Property

    Uploaded by

    Manjare Hassin Raad
    This document discusses the distinction between movable and immovable property under Indian law. It begins by explaining that the Transfer of Property Act only governs the transfer of immovable property, while movable property is governed by the Sale of Goods Act. It then discusses how immovable property is defined under various Acts to include land, things attached to the land, and benefits arising from land. It provides examples to illustrate fixtures and interests that constitute immovable property. The document also discusses how to determine if a movable item has become immovable by using tests based on the degree of attachment and purpose of attachment. It concludes by distinguishing key differences between movable and immovable property.

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    Transfer of Property

    Topic 1.
    Movable and Immovable property
    We are here …
    1. Movable and immovable property
    2. Attestation and notice
    3. Actionable claim
    4. Transfer of property
    5. Restraints on transfer
    6. Rule against perpetuities
    7. Vested and contingent interest
    8. Doctrine of election
    9. Sale of immovable property
    Relevance
    • Like I told in the introduction, TP Act governs
    only the transfer of IMMOVABLE properties.
    • MOVABLE properties are governed by Sale of
    Goods Act.
    • Hence, there is a need to understand what is
    movable and what is immovable property and
    the ways to distinguish them.
    • Relevance to exam - I really do not know!
    • Wherever the word “Act” or “TP Act” has been
    used, it is to be understood as Transfer of
    Property Act, 1882
    Property
    • Not defined in TP Act
    • When we examine the Act, we realise that the
    word has been used in the most widest and
    generic sense.
    • Property denotes
    – Every kind of interest or right
    – That has an economic content
    • Property broadly classified into
    – 1. Movable property
    – 2. Immovable property
    Immovable property
    (TP Act deals only with this)
    • TP Act doesn’t define immovable property
    • Sec. 3 lays down “immovable property”
    does not include
    – Standing timber
    – Growing crops or
    – Grass
    • Sadly, what is “included” as immovable
    property is not defined!
    • So, what do we do now? :/
    Indian Registration Act
    • Immovable property includes:
    – Land
    – Building
    – Hereditary allowances
    – Right to ways
    – Lights
    – Ferries
    – Fisheries
    – Any benefits to arise out of land and things attached
    to earth, but not standing timber, growing crops or
    grass (here, they meant the normal grass!)
    General Clauses Act, 1897
    • According to Sec. 3 (26) of General Clauses Act,
    “immovable property” shall include:
    – 1. Land
    – 2. Benefits to arise out of land
    – 3. Things attached to the earth or permanently
    fastened to anything attached to the earth

    • These above three elements will be expanded


    and studied. Definition of Registration Act also
    will be used to give completeness.
    1. Land
    • Land includes
    – 1. Earth’s surface
    – 2. Earth’s surface covered by water
    – 3. Column of space above the surface
    – 4. Ground beneath the surface
    Land also includes

    • Above the surface:


    – Objects placed by human agency with the
    intention of permanent annexation
    • Eg: buildings, fences, walls

    • below the surface:


    – In its natural state
    • Eg: Minerals
    2. Benefits to arise out of land
    profits a pendre
    • Every benefit arising out of immovable property
    • Every interest in such property

    As per registration Act, benefits to arise out of land:


    • Hereditary allowances
    • Rights of ways
    • Lights
    • Ferries
    • Fisheries
    Cases

    Ananda Behera v. State of Orissa


    (AIR 1956 SC 17)
    – right to catch fish from Chilka lake, over a number of
    years, was held to be an equivalent of a benefit to
    arise out of land

    Shanta Bai v. State of Bombay


    (AIR 1959 SC 532)
    – right to enter land, cut and carry away wood over a
    period of twelve years was held to be immovable
    property. The right to collect lac from trees is also
    immovable property.
    3. Things attached to earth
    (Doctrine of fixtures)
    • Sec. 3 of TP Act defines “attached to
    earth” as including:
    – Things rooted in the earth
    – Things imbedded in the earth
    – Things attached to what is so imbedded
    – Chattel attached to earth or building

    (Chattel - movable property)


    Making it clear
    • Things imbedded in the earth
    – Eg: a building

    • Things attached to what is so imbedded.


    – Eg: a fan. It is not directly attached to earth. It is
    attached to the building. And the building is imbedded
    in the earth. Since the fan is attached to the building
    that it attached to the earth, fan is also an immovable
    property.
    – Similar to the joke where the student tells the teacher
    that the teacher’s daughter loves the teacher, the
    teacher loves the student and hence it is to be
    inferred that the teacher’s daughter loves the student!
    Test
    • How to determine whether any movable
    property attached to the earth has become
    immovable property?

    • Two well established tests in English law:


    – Degree / mode of annexation
    – Object / purpose of annexation
    Degree / mode of annexation
    This was the rule laid down in Holland v. Hoggson
    • If the movable property is resting on the land
    merely on its own weight, the presumption is that
    it is movable property, unless contrary is proved.
    – Eg. A brick resting on the land
    • If it is fixed to the land even slightly or it is
    caused to go deeper in the earth by external
    agency, then it is deemed to the immovable
    property, unless contrary is proved
    – Eg. A machine fixed to the land by using screws (like
    in industries)
    Object / purpose of annexation
    Test:
    • Whether the purpose was to enjoy the chattel (movable
    property) ?
    – Some crushed stones are deposited on a land, so that it can be
    transported elsewhere in a few days. Here, the intention / object
    is not to keep the stones permanently. They are to be enjoyed
    independently of the land on which they are deposited.
    • Or to permanently benefit the immovable property ?
    – Some blocks of stones are placed one above the other without
    using cement, but in a manner that it stays strong and acts as a
    wall and prevents cattles entering the land. Here, the intention is
    to make a wall out of the stones. It becomes a part of the
    property. It benefits the property by protecting to the property.
    Intention is important

    • One more rule:


    – House owner fixing a fan is permanent. It is deemed
    that when the owner of a land does some fixture, he
    intends to retain the fixture indefinitely.
    – Tenant fixing a fan is temporary. He will surely
    remove the fan whenever he vacates the house. It is
    deemed that when the tenant of a land does some
    fixture, he doesn’t have the intention to have the
    fixture forever.
    Some leading cases
    • Shanta Bai v. State of Bombay (AIR 1958
    SC 532)
    • State of Orissa v. Titaghur Paper Mills Co.
    Ltd. (AIR 1985 SC 1291)
    • Ananda Behera v. State of Orissa
    • Firm Chhotabai Jethabai Patel & Co. v.
    State of MP
    We have just finished immovable
    property part (recap)
    1. Land
    – Earth, below, above etc

    2. Benefits to arise out of land (profits a pendre)


    – Benefits and interest

    3. Things attached to the earth or permanently


    fastened to anything attached to the earth
    – Test to determine (doctrine of fixture)
    • Degree / mode of fixation
    • Object / purpose of fixation
    Movable Property
    • TP Act doesn’t define “movable property”.
    • General Clauses Act: “property of every description
    except movable property”

    • Examples:
    – royalty,
    – machinery not attached to earth,
    – a decree for arrears of rent,
    – government promissory notes,
    – standing timber,
    – growing crop,
    – grass
    Cases
    • SPKN Subramanian Firm v. M. Chidambaram
    (AIR 1940 MAD 825)
    – “oil engine” (generator) was fixed by defendants using
    nuts and bolts in a cinema hall for generating
    electricity. The machine was pledged by way of
    security bond. Whether the machine is a “movable” or
    “immovable” property?
    – Defendants had taken the premises on lease. Hence,
    they never had the intention of making the machine a
    part of the immovable property. The machine (oil
    engine) was held to be an immovable property.
    – Principle: intention of the party fixing it. Whether
    permanent or temporary.
    Case
    • Bamadev Panigrahi v. Monorama Raj (AIR
    1973 AP 226)
    – Cinema equipments like projector, diesel
    engine etc, installed on the tenanted land
    temporarily, are movable properties.
    – Even if the equipments were fixed strongly,
    the land was taken on mortgage. Hence, we
    can infer that the equipments will be fixed only
    till the terms of mortgage lasted.
    Case
    • Duncans Industries Ltd. v. State of UP
    (2000 1 SCC 633)
    – Again, the court held that the intention of the
    party fixing the equipment should be
    considered. Whether the intention was to
    have the equipment permanently or
    temporarily. This depends on – whether the
    immovable property is his own or is taken on
    rent or lease.
    Distinguish between movable
    and immovable property
    Movable Immovable
    1. Includes land, benefits to arise 1. Includes stocks, shares,
    out of land, things attached to growing crops, grass, things
    earth (Sec. 3 of General attached to or forming part of
    Clauses Act) land, and which are agreed to
    be severed before sale, or
    under the Contract of sale
    (Sec. 2 of Sale of Goods Act)

    2. If the thing is resting on the


    2. If the thing is fixed to the land land merely on its own weight,
    even slightly or it is caused to presumption is that it is
    go deeper in the earth by movable property, unless
    external agency, then deemed contrary is proved.
    to be immovable
    Movable immovable
    3. If purpose of annexation of a 3. If purpose is to only enjoy the
    thing is to confer permanent thing itself, then it is movable
    benefit to land, then property, even though it is
    immovable property fixed in the land

    4. Eg. Hereditary 4. Eg: right to worship,


    allowances, right of way, royalty, decree of sale of
    ferries, fisheries, right to immovable property,
    collect rent and profits out decree for arrears of rent,
    of immovable property, standing timber, growing
    right to cut grass for one crops, grass.
    year.
    Clarifications
    • ‘Standing timber’ is different from a ‘timber tree’.
    • Standing timber – tree in such a state that of cut,
    it could be used as timber. Movable property.
    • Timber tree – tree drawing sustenance from soil.
    Immovable property

    • Growing Grass – movable property


    • Right to cut the grass – immovable property (it is
    a right arising out of immovable property)
    The contents of this file have been compiled from various
    reliable sources. Due care has been taken to avoid
    errors. The author of this work takes no responsibility for
    the consequences arising out of error. The reader is
    advised to cross check with the text books and the Act in
    case of confusion. You are allowed to share this file with
    your friends without making changes to the contents of
    this file. However, you are not allowed to exploit this
    work commercially.

    - Gagan K.
    University of Mysore
    gagan555@gmail.com

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