Immovable Property as per the Transfer of Property Act, 1882
What does an immovable property include, legally speaking? If I buy a plot of land, do I also acquire a property right over the trees growing on it? How about the crops planted by the prior owner? Do those crops belong to me after the sale? Or does the prior owner have a right to harvest them before handing over the land to me? And, what about fans, windows, and doors attached to the house? Do I have a right, to claim these as well, along with the house? This article will try to answer these and other related questions while exploring the legal meaning and scope of the term ‘immovable property.
We find a definition of immovable property in the Registration Act, 1908. According to section 2 (6) of the act, ‘immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of the 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.
The Transfer of Property Act, 1882, does not provide a positive definition for immovable property. Section 3 of the act, merely mentions what it does not include- standing timber, growing crops or grass on a piece of land. This exclusion is consistent with the definition given in the Registration Act, 1908.
Law statues do not tell us everything, and hence, legal practitioners rely on interpretations made by successive court judgments to comprehend the broad meaning and contours of legal terms.
Let’s first try to understand what property in land implies-
A piece of land includes all the area above and below it. Subject to government regulations and public policy, a land owner is free to add as many floors over his piece of land as may please him. And, he is also free to dig as deep underneath as he may desire.
Anything discovered beneath the surface, like oil, coal, or valuable minerals like gold, silver, diamond, etc is included in the property right of the landowner. The government may acquire such assets, albeit only through some law duly passed by the legislature, that authorizes it to do so.
All types of water bodies over a piece of land, including ponds, lakes, and even portions of a river flowing through it are the property of the landowner.
Any permanent structures that the property owner might erect over his land- like buildings, railings, or walls, are treated as being integral parts of the property, indistinguishable from the land in legal terms.
Products rendered by trees growing over a piece of land- like fruits, useful forest products like lac, honey, spices, medicinal leaves, etc, being incapable of being severed from it, are considered as being attached to the land. Fishing rights over water bodies existing on a piece of land are also deemed to be property rights attached to it.
Any rents realized from the property or debt secured by the mortgage of it is considered to be a benefit attached to the land.
Right to profit a prendre
As we saw above, not all aspects of immovable property as tangible in nature. Some of its components, like the right to fish on its water bodies, grazing animals over it, harvesting fruits, honey, and other forest products, rearing lac, mining minerals, etc are intangible legal rights to enjoy the products of the land for profits. Such rights are referred to as a right to profit a prendre. While such beneficial interests or rights may be alienated for a price, or otherwise, being benefits arising out of the land, they are considered to be immovable property, which can be acquired only through a document in writing.
Trees are immovable property but timber is not
We saw above that as per section 2 (6) of the Registration Act when a person sells his land, he also transfers to the buyer everything that is
a) rooted in the earth, like trees and shrubs
b) embedded in the earth (walls and buildings)
c) attached to what is so embedded for the permanent beneficial enjoyment of that which is attached (like doors, knobs, windows built into a building).
However, we also saw that the statute makes exceptions for timber, standing crops, and grass growing over land, as not being immovable property.
The legal import is that if a person sells his immovable property, he is not bound to transfer the timber standing over it; timber being such trees that are ready to be cut and harvested for wood in the near future. This makes it possible for a person to retain his property rights over standing timber despite the fact that he may have sold the ownership of the land over which they stand.
However, if these same trees had been planted to harvest fruits they would be treated as immovable property rooted in the land and hence incapable of being sold separately from the land on which they grow. In case timber also happens to be fruit bearing trees, the court would look into the purpose for which they were planted. If the intent was to harvest them for fruits, they would be treated as immovable property rooted in the land, and hence incapable of being sold separately from it.
This test for distinguishing movable property from the immovable property was explained by Hollway J as follows, "movability may be defined to be a capacity in a thing of suffering alteration of the relation of place. Immovability is incapacity for such alteration. If, however, a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable". A fruit-bearing tree would cease to be a fruit-bearing tree if it is uprooted, thus defeating the intent for which it was planted. Hence, fruits bearing trees are treated as immovable property.
As to whether a tree would be considered fruit bearing (and hence immovable) or timber (hence movable) is determined by courts based on the concrete facts of a case. For instance, in Sheikh Jan Mohammad v Umanath Mishra, (AIR 1962 Pat 440:ILR 41 Pat 353) the court ruled that though a mango tree can be utilized as timber, in this case, it had been planted with the intent of harvesting it for fruits, and hence it was immovable property. Had the purpose been to obtain timber, it could have been ruled to be movable property. For a similar reason, Mahua trees, palm, and date trees have been ruled as not being standing timber. A similar verdict was given by the court in Shantabai v State of Bombay, (AIR 1958 SCR 265).
Whether it is a fruit bearing tree or standing timber has to be decided based on whether the owner was interested in its further vegetative growth and long-term benefits, or he wished to cut it down in the near future. Keeping true to this legal position, in Suresh Chand v Kundan (2000) 7 Scale 620, the supreme court held that since at the time of agreement for sale, the trees in question were mere saplings, being many years away from being cut and sold as timber, the correct interpretation was to treat them as being immovable, and hence a part of the immovable property transferred. In the light of the above-mentioned judgments, one could say that a seller selling land is well within his right to exclude his trees from sale if his intent is to cut and sell them as timber.
Growing Crops and Grass
Crops of all kinds are planted with the express object of harvesting and selling them when they are ripe; therefore, though rooted in the earth, they are not immovable. Growing grass, used as cattle fodder, is also considered movable property. However, the same cannot be said about the right to cut grass over an extended period of time. Such a right was held in Seeni Chettiar v Santhanathan to be a beneficial interest in land and hence immovable property.
Things embedded in the earth
In general, things embedded in the earth like houses, walls, fences, etc are held to be immovable property. However, this is not a golden rule valid for all situations and times. A huge pile of baked bricks placed on the ground may not be immovable property, but a crude uncemented line of stones placed at the edge of a property to mark its fence may be considered immovable property.
The final verdict always depends on the concrete facts of a case, therefore there is no reliable way to predict for all times and cases whether things embedded in the earth would be considered immovable property. However, two broad parameters have been utilized by successive court decisions-
Degree of embeddedness- if something is so embedded in a piece of immovable property that it cannot be removed without destroying or altering its purpose and character, then it may be considered to be immovable property annexed to it. For instance, a movie theatre would cease to remain functional if all its seats were removed before its sale. Therefore, seats attached to the cinema hall may be considered to be annexed to it as immovable property.
The object behind embedding it- In general, courts have tended to lay significance to the purpose for which an object was annexed to immovable property by its owner-whether he desired it to be embedded permanently, and in perpetuity, or whether it was supposed to be of a temporary nature.
Attached to what is so embedded
These are things necessary for the enjoyment of property- doors, windows, fans attached to the building, without which it would be impossible to inhabit it. Likewise, without doors, windows, etc a house would be uninhabitable. Therefore, things so attached are considered immovable property inalienable from the main structure. However, this rule, in general, applies to necessities only. Air-conditioners, refrigerators, and television sets attached to walls are not considered annexed immovable property.
Immovable property has been referred to and partially defined in The Transfer of Property Act, Section 3, The Registration Act, 1908, and Section 3 (25) of the General Clauses Act. However, as we saw in the foregoing, these statutes do not provide us with a conclusive definition. The scope and import of the term immovable property have evolved with emergent legal issues and successive court judgments over.
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