| Introduction | jurisprudence |
| Section | section 3 TPA |
| Relevant case laws | Shantabai vs State of bombay State of Orissa vs Titaghur paper mills Bamadev vs Monorama duncuns industries vs State of UP |
| present problem | question related |
| conclusion | decision as per our reasoning |
Movable Property are those which can be transfer or move from one place to another, whereas Immovable property are those which cannot be move or transfer anywhere, generally. Examples of movable are Furniture, car, standing timber,etc. examples of immovable are building, trees, land, etc.
Movable Property is not defined under Transfer of Property Act.
But immovable property as per Section 3, Transfer of Property Act,1882, immovable property does not include standing timber, growing crop and grass.
- Standing timbers are tree fit for use for building or repairing houses. This is an exception to the general rule that growing tree are immovable property.
- Growing Crop:- It includes all vegetables growths which have no existence apart from their produce such as pan leave, sugarcane, etc
- Grass:- Grass is an movable property, but if it is right to cut grass it would be an interest in land and hence forms immovable property.
General Clauses Act, 1897 defines Movable and Immovable property:
section 3(26),
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.
section 3(36) “movable property” shall mean property of every description, except immovable property;
Indian Registration Act, 1908
section 2(6) immovable property 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;
section 2(9) movable property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property;
Section 3 of TPA, 1882 ( Doctrine of Fixtures)
Things attached to the earth;
1. Things rooted in the earth, like trees, buildings
2. Things imbedded in the earth, like walls,etc.
3. things attached to what is so imbedded, eg. fan
There are two tests to determine whether any property is embedded in earth or not. They are:
- 1.Degree/mode of annexation
- 2. Object of annexation
Mode of Annexation: (Holland vs Hoggson)
- – If the movable property is resting on the land merely on its own weight, the presumption is that it is movable property, unless the contrary is proved. Example; Bricks resting on land
– If it is fixed to the land even slightly or it is caused to go deeper in the earth by external force/ agency, then it is deemed to be immovable property, unless contrary is proved. eg: machine fixed on land by using screws.
Object of Annexation:
- – 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.
– If the purpose is to enjoy movable property, example some crushed stones are deposited on a land, so that it can be transported elsewhere in few days. the intention is not to keep the stones permanently. - Difference between Movable and Immovable Properties:
| Movable Property | Immovable Property |
| those properties which can be move from one place to another. | those properties which unable to change its place. |
| If the thing is resting on the land merely on its own weight, the presumption is that it is movable property, unless the contrary is proved. | If The thing 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 be immovable property. |
| No registration is required to transfer a movable property. | Transfer of immovable property requires registration of the document. |
| According to sec 2 of SOGA,1930, it includes stocks and shares, growing crops, grass. | According to sec 3 GCA, 1897, it includes land and benefit arising out of land. |
| If the purpose was only to enjoy the thing itself, then it is movable property even though it is fixed in the land. | If The purpose of annexation of a thing is to confer a permanent benefit to the land to which it is attached, then it is immovable property. |
| Examples: Right of worship; royalty; a decree for sale of immovable property; a decree for arrears of rent; Government promissory notes; standing timber, growing crops and grass. | Examples: Benefits to arise out of land such as hereditary allowances, right of way, ferries and fisheries, right to collect rent and profits of immovable property; a mortgage-debt; right to cut grass for one year; a factory; etc. |
Relevant Case Laws:
Shantabai vs State of Bombay
facts:
Husband of petitioner, the owner of a forest, executed an unregistered document styled as a lease in favour of his wife Shantabai, for a consideration of Rs. 26,000, for a period of 12 and a half years. As per the deed, the right was conferred upon her to enter the estate for cutting and taking out bamboo, fuel wood and teak. At the same time, she was prohibited from cutting teak plants that were under the height of one and a half feet. Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 was passed, under which all proprietary rights in the land vested in the state and petitioner was stopped from cutting any more trees.
The petitioner on this violation of her right claimed compensation from the government as they ousted her from the forest from 1951 to 1955. The claim was also initially given up on the understanding that the petitioner would be allowed to work in the forests for the remaining period.
She applied to the Divisional Forest Officer and asked for permission to cut trees in the forests, it was not granted to her. She filed a petition in the court under Art. 32 of the Constitution.
issue:
What was the nature of right created in her favour, a right in movable or immovable property?
judgement:
Whether the right granted in her favour was a right in movable or immovable property, if
the right was in immovable property, then irrespective of the fact of the change in
ownership, she would still be entitled to realise the right but provided it was conferred in
her favour with the help of a document capable of taking effect in law.
Where it was a lease for a period of 12 years it should have been executed in her favour
with the help of a written, attested and registered document.
If it was a right in movable property, then if the ownership changes hands, then, though the
right to take the benefit as per the original contract will come to an end, but the grantee
would be entitled to compensation for the rest of the time period for which she was not
able to realise the right.
Here, petitioner could never have succeeded if the right was in immovable property as the
document on which she relied was in writing, but was neither attested nor registered. Thus,
she tried to prove that the grant was in standing timber, and therefore in movable property.
The court held that a right to enter upon the land of another and carry a part of the produce
is an instance of profits prendre, i.e., benefit arising out of land, and therefore a grant in
immovable property. Pointing out the distinction between timber trees and standing timber,
the court held that the grant here was not merely of standing timber, but the grantee here
was empowered to take the benefit of the soil.
The execution of document in this case was not a transfer of a right to enjoy immovable property and just a license to enter the land, not for the purpose of enjoying it, but to remove something from it, that is, a portion of the soil yield.
The court said:
→ It is evident that trees that will be fit for cutting 12 years hence will not be fit for felling
now. Therefore it is not a mere sale of the 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, in the shape
of nourishment in the soil that goes into the tree and make it grow till it is of a size and age
fit for felling as timber and if already of that size in order to enable it to continue to live till
the petitioner choose to fell it.
Here the right was spread over a period of 12 years and the intention was not to cut the trees at a reasonably early time period, and as the right was created with the help of an unregistered lease deed, Shantabai could not be granted any remedy.
State of Orissa vs Titagur Paper Mills ltd.
facts;
One of the contracts related to an agreement of the petitioner’s company with state of Orissa for the purpose of felling, cutting and obtaining and removing bamboos from forest areas for converting the bamboo into paper pulp, or for purposes connected with the manufacture of paper, or in any connection incidental therewith. Thus, the company had the right to use all lands, roads and streams within, as well as outside the contract areas for the purposes of free ingress to, and egress from, the contract areas. The agreement extended to 14, 13 and 11 years with respect to different contract areas with an option to the company to renew the contract for a further term of twelve years and it embraced not only bamboos which were in existence at the date of the contract but also bamboos that were to grow and even come in existence thereafter. Orissa government, through a notification under the Orissa Act (on account of the purchase of bamboos agreed to be severed and standing trees agreed to be severed), introduced a tax by declaring this contract as a contract for movable property.
issue:
Whether it is a contract of moveable or immovable property?
judgement:
The court held that the bamboo contract related to immovable property as a benefit to arise
out of land and did not relate to a contract of movable property.
Bamboo Contract is not a contract of sale of goods but is a grant of a profit a prendre, that
is, of a benefit to arise out of land and that it is not possible to bifurcate the Bamboo
Contract into two: one for the sale of bamboo existing at the date of the contract and the
other for the sale of future goods, that is, of bamboos to come into existence in the future.
Contract for the purpose of felling, cutting and removing bamboos from forest areas for
the purpose of converting the bamboos in proper pulp etc., have been held to be profit a
prendre.
“Standing timber” must be a tree that is in a state fit for these purposes and, further, a tree
that is meant to be converted into timber so shortly that it can already be looked upon as
timber for all practical purposes even though it is still standing. If not, it is still a tree
because, unlike timber, it will continue to draw sustenance from the soil.
A tree will continue to draw sustenance from the soil so long as it continues to stand and
live; and that physical fact of life cannot be altered by giving it another name and calling
it “standing timber”.
But the amount of nourishment it takes, if it is felled at a reasonably early date, is so
negligible that it can be ignored for all practical purposes.
It is an agreement for a long period extending to fourteen years, thirteen years and eleven
years with the respondent Company to renew the contract for a further term of twelve years
and it embraces not only bamboos which are in existence at the date of the contract but also
bamboos which are to grow and come into existence thereafter.
Court held that the agreement between the parties for cutting, felling and removing bamboos from forest for 14,13,11 years for different contract areas is benefit arising out of land, i.e., immovable property and cannot termed as standing timber, movable property.
Bamadev vs Monorama Raj
facts:
A person, A, was conducting a business under the name of ‘Kumar Touring Talkies’. He obtained land under possessory mortgage from the Raja of Mandasa in 1957, and built a temporary cinema structure and erected a temporary pandal over it. For the purposes of exhibiting cinema shows, he purchased a cinema projector and a diesel oil engine. This equipment was embedded and installed in earth by construction of foundation. For the purpose of running the cinema shows, A, applied and got a license for a period of one year from the concerned authorities. He allegedly entrusted the management of this business to his friend B, out of trust and confidence in him. However, B colluded with the Rajah and obtained the mortgage in his name. A issued a notice in May 1961, calling upon B to render correct account of the management of the entire cinema concern including the machinery, equipment, records, etc. B denied his liability to account for the management of Kumar Touring Talkies by a written reply in June 1961. A died due to sickness in 1965. Thereupon, A’s widow W filed a suit in July 1966, praying for a declaration that she was the owner of Kumar Touring Talkies, and a direction that the equipment including the cinema projector and the diesel oil engine be returned to her.
issue:
Whether demand of W is moveable property or immovable property?
judgement:
If the disputed property is immovable, it will go ahead and decide the case on merits.
If such property is movable, then the case will be dismissed as time barred, it having been
filed after more than three years from the date the right or claim was denied, i.e., B had
denied the claim of A in June 1961 while the suit was filed in this respect in July 1966.
The court here noted that the operation of the business by its very name, ‘Kumar Touring
Talkies’ showed that exhibiting cinema shows at a specific place was purely temporary.
Therefore, even if the two items of disputed property were attached and embedded in earth,
the intention can only be to have them affixed to earth temporarily.
The license to exhibit the shows was only for a period of one year, and there was no
guarantee that the owner would have applied for its renewal or the authorities would have
renewed it.
The person who fixed them to the land was not the owner of the land. These items were in
fact been removed from the land subsequently.
The tests are to see what is the intendment, object, and purpose of attachment; whether it
is for the beneficial enjoyment of the building, land or structure, or the enjoyment of the
very attachment, and the degree or manner of attachment or annexation or the enjoyment
of it to the earth.
The court held that a cinema projector and a diesel oil engine fixed on earth for the purposes of exhibiting shows in a touring cinema, were movable properties and the suit being time barred was dismissed.
Duncans Industries ltd. vs State of UP
facts:
A company agreed to transfer its fertilizer business including the plant and machinery. The parties had treated them as movables and had delivered possession of the said plant and machinery as movables. This plant and machinery related to the fertilizer business of manufacturing, marketing distribution and sale of urea fertilizer, and included ammonia manufacturing plants, captive power plants, vehicles, furniture, air conditioners, standby systems, pipelines, railway siding, etc. The machineries which formed the fertilizer plant were permanently embedded in the earth, for running the fertilizer factory and at the time, when these machineries were embedded in earth, they were done so by the owner with an intention, to use them permanently. By showing plant and machinery as movable property, they were saving taxes which were imposed on transfer of immovable property.
issue:
What is the character of plant and machinery?
judgement:
Sale of a fertilizer factory would include not only the land but also the plant and the machinery of the factory.
The very nature of the user of these machineries, it was necessary that they be permanently attached to the ground. Things permanently attached to what is embedded in the earth, for the permanent beneficial enjoyment of that to which it is attached, the requisite factors here are that: → Firstly, it must be a permanent attachment, i.e., intended to be used in perpetuity or till the life of the attachment.
→ Secondly, its attachment constitutes a permanent improvement to the thing to which it is attached.
Primarily, the court will have to take into consideration the intention of the parties (sic party) when it decided to embed the machinery, whether such embedment was intended to be temporary or permanent.
The description of the machines as seen in the schedule attached to the deed of conveyance also shows without any doubt that they were set up permanently in the land in question with a view to operate a fertilizer plant and the same was not embedded to dismantle and remove the same for the purpose of sale as machinery at any point of time.
The facts show that the purpose for which these machines were embedded was to use the plant as a factory for the manufacture of fertilizer at various stages of its production. Hence, the contention that these machines should be treated as moveables cannot be accepted.
The court held that these were immovable properties. Therefore, physical delivery of possession, without a written, attested and registered document could not convey any title to the other party in these properties.
Present Problem;
(i) A right to cut mango tree for 2 years. (ii) Sale of wheat crop which would be ready to harvest within one month. (iii) Oil engine attached to land by mortgagee.
Answer: (i) Right to cut mango tree for 2 years is an immovable property (Shantabai Case).
(ii) Crops are movable property as per section 3 TPA
(iii) Oil engine attached to land by mortgagee is movable property
Vivek, the owner of a vacant piece of land, purchased a pump and pipes from Neeraj on hire purchase basis. The terms of agreement clearly specified that Vivek was to pay the total money in twelve equal instalments and till the money was paid, the ownership in these chattels would not pass on to Vivek. Vivek took the pump and the pipes and installed them in the land with the help of concrete and cement foundations. The pipes went deep into the earth. Vivek paid the first instalment and then sold the land to Sahil and failed to pay the rest of the instalments to Neeraj. Neeraj wants to enter the land now in possession of Sahil and recover his property. Can he do so? Discuss in light of relevant legislation and judicial precedents.
Answer: It depends upon the intention of person whether he want to make the property movable or immovable. Vivek installed the pipes into the earth with concrete and cement with the intention of using it permanently, so it is considered to be an immovable property. Neeraj cannot enter into the land and recover possesion of the property from Sahil.
