Posted December 9, 2013 by advocateguru in Learning Centre
 
 

Distinction between movable property and immovable property

The Transfer of Property Act. 1882 has not defined the term Immovable Property. Sec. 3 of the said act merely lays down that, “Immovable property” does not include standing timber, growing crops or grass.

The definition of “Immovable property” given in this section is not exhaustive. It simply says: ‘Immovable property’ does not include standing timber, growing crops or grass. The definition of ‘immovable property’ in the General Clauses Act is also not exhaustive. That definition is as follows :

As per Sec.3 (26)1, the “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.”

Attached to 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 is attached.

The degree, manner, extent and strength of attachment of the chattel to the earth or building, are main features to be regarded. All the three aspects in the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. Held, the attachment of oil engine to earth though it is undoubtedly a fixture, is for the beneficial enjoyment of the engine itself and in order to use engine, it has to be attached to the earth and the attachment lasts only so long as the engine is used. When it is not used it can be detached ans shifted to some other place. The attachment in such a case does not make the engine part of the land and as immovable property.

The English law of fixtures has no strict application to the law in India relating to machinery attached to the earth or permanently fastened to anything attached to earth.

The question whether any machinery such as an oil engine imbedded in earth or permanently fastened to anything attached to the earth is movable or immovable property, is a mixed question of fact and law depending upon the facts and circumstances of each case.

The test enunciated by the decided cases to determine the character and nature of the property are :

(i) What is the intendment, object and purpose of installing the machinery – whether it is the beneficial enjoyment of the building, land or structure, or the enjoyment of the very machinery?

(ii) The degree and manner of attachment or annexation of the machinery to the earth.

Whether the machinery and the building or land on which it is installed, are owned by one and the same person, normally it should be inferred, unless the contrary is preyed, that the object and purpose of installing the machinery is to have beneficial enjoyment of the entire building or land, but not the role enjoyment of the very machinery itself. However, where the machinery imbedded or installed and the building or land belong to two different persons the intendment and object of the person is in possession and enjoyment of the property in installing or annexing the machinery must normally be presumed, until the contrary is proved, to be to exploit the benefit of the machinery alone, as he is not interested in the building or the land. Where the building or land or factory is taken on lease for a term by a lessee and he installs certain machinery on that property during the lease period, it as to be held that his object and purpose of installing the machinery was the beneficial enjoyment of the very machinery during the period of his lease. A tenant, who is in possession of land for a certain period, would not intend to make any permanent improvement to the land itself but try to make use of any machine or oil engine during the period of his lease. In alt probability, he may remove the oil engine or machine from that land the moment his object of its beneficial enjoyment during his lease period is achieved.

In a case, the fixture on the land cannot be termed to be permanent one so as to bring it within the meaning of immovable property. The nature of the property on which the machinery was installed, is also a relevant and material factor to be taken into consideration in determining the character of the machinery. Where the building in which machinery such as an oil engine or a cinema projector has been installed by the owner, is not a pucca and permanent one, but is only a temporary shed or tent, his intention and purpose could only be the beneficial enjoyment of the very machinery but not the building. However, where a cinema projector and an oil engine have been installed in a permanent cinema theatre, the purpose and object of installing the same must invariably be the beneficial enjoyment of the very cinema theatre. The intendment, object and purpose of the person who fastens or installs the machinery has to be inferred has to be inferred from the proved facts and admitted circumstances.

The tests enunciated by the decided cases to determine the character and nature of the property are:

(i)

In Holland v. Hodgson looms attached to earth and floor of a worsted mill were held to be fixtures.

In Leigh v. Taylor, held that, certain valuable capacities affixed by a tenant to the walls of a house for the purpose of ornament and for the better enjoyment of them as chattles, had not become part of the house, but formed part of the personal estate of the tenant for life.

In Subrahmaniam Firm v. Chindambaram, the machinery installed by a tenant for running a cinema in the premises taken by him on lease for his own profit, was held to be movable property within the meaning of Section 3 of Transfer of Property Act, as it was not permanent improvement to the premises.

Land.- Considered in its legal aspect, land includes the following elements:

1. A determinate portion of the earth’s surface.

2. Possibly the column of space above the surface.

3. The ground beneath the surface.

4. All objects which are on or under the surface in its natural state: for example, minerals. Land includes lakes, ponds and rivers within its boundary. They are called land covered by water.

5. All objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables for example, buildings, walls and fences.

Benefits to arise out of land. – Apart from property being immovable from the physical point of view, every benefit arising out of it and every interest in such property is also regarded as immovable property. A debt secured by a mortgage of immovable property is an interest inland and is, therefore, regarded as immovable property. The right to collect lac from jungle, flash from pond, right to take minerals, rent from ‘hat’ or market place or house are various illustrations of benefits arising out of land. In Shanta Bai v. State of Bombay, right to enter land, cut and carry away wood over a period of twelve years was held to be immovable property.

Things attached to earth.–

The present section defines the expression “attached to earth” as including –

(a) “Things rooted in the earth” include such things as trees and shrubs, but where such trees constitute standing timber they are not immovable property. For example, Babool trees and Seesham trees are ordinarily standing timber and are, therefore, movable property although they are ‘things rooted in the earth’. Trees which bear fruits are not standing timber but are considered as immovable property. There are however, certain fruit-bearing trees, such as mango trees which are also used as a timber. Whether such trees are to be regarded as movable or immovable property depends upon the circumstances of the case. If the intention is to use them for the purpose of enjoying their fruits, they will be regarded as immovable property of enjoying their fruits, they will be regarded as immovable property. But if the intention is to cut them down sooner or later for the purpose of utilizing the wood for building or other industrial purposes, they would be timber and would accordingly be regarded as movable property. Similarly, growing crops and grass although rooted in the earth are not within the definition of the term ‘immovable property’. These are all things usually contemplated as severable from the soil and are regarded a movable property.

(b) “Things imbedded in the earth’ include such things as houses and buildings. There are, however, certain things which are imbedded in the earth yet they are not immovable property as for example, an anchor imbedded in the land to hold a ship. When the article in question is no further attached to the land by its own weight, it is generally to be considered as movable property. But even in such a case if the intention is to make th articles as part of the land they do become part of the land. Thus, blocks of stones placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land. Everything therefore depends upon the circumstances of each case and mainly on two circumstance, as indicating the intention, viz. (1) the decree or mode of annexation. For example, Looms attached to the floor and beams of a mill or tip up seats fastened to the floor of cinema halls are immovable but not screws vaht resting on brick-work and timber and tapestries, and (2) the object of the annexation. For example: Blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall, will become part of the land but not the stones deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of wall. Anchor of a ship will not be part of land howsoever deeper it may have gone in the earth. But if it is used to support the strain article stands on the earth upto its own weight, it will not be part of the land but if it is caused to go deeper in the earth by external agency, then it is part of a land.

(c) ‘Things attached to what is so imbedded’ must be as the section says, for the permanent beneficial enjoyment of that to which it is attached. Thus, the doors and windows of a house are attached to the house for the permanent enjoyment of the house. But if the attachment is not intended to be permanent, the things attached are not immovable property, e.g., electric fans or window blinds.

(d) Chattel attached to earth or building. – If a chattel, i.e., movable property is attached to earth or building, it is ‘immovable property’ and it is a mixed question of fact and law. The degree, manner, extent and strength of attachment of the chattel to the earth of building, are the main features to be regarded. All the three aspects in the description show that the attachment should be such as to partake of the character of the attachment of the trees or shrubs rooted to the earth or walls or buildings imbedded in that sense, the further test is whether such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. For a chattel to become part of immovable property and to be regarded as such property, it must become attached to the immovable property as permanently as a building or tree is attached to the earth. If, in the nature of things, the property is a movable property is a movable property and for its beneficial use or enjoyment it is necessary to imbed it or fix it on earth, though permanently, that is, when it is in use, it should not be regarded as immovable property for that reason.

Standing Timber.– Standing timber, growing crops and grass are regarded as severable from the land on which they stand, and, therefore, they are not included in the term ‘immovable property’. If, however, they and on which they stand is sold, such standing timber, or growing crops will pass to the Pipal, Banyan, Teak, Bamboo, etc. They do not include the fruit bearing trees like Mahua, Mango, Jack fruit, Jamun, etc. But the fruit bearing tree may become standing timber if the contract for its severance has already been entered into in respect of them. After agreement, the land, where they stand, is deemed to be their warehouse.

It is common knowledge that Deodar, Kail and Rai trees are used for building purposes. The intention of the parties was that to cut the trees immediately. Held, the agreement is related to standing timber and requires no registration.

Growing crops.– The term includes the creepers like Pan Angoor creepers, the various vegetables like Louki, Kaddoo, etc. and the Sugar Cane, Wheat, Barley, etc. They do not own independent existence beyond their produce.

Grass.– Grass can only be used as fodder. Its no other use is possible. Therefore it is movable. But a contract to cut the grass will be an interest in immovable. It will be an interest in chattel.

Movable Property :-

There is no definition of movable property in the Act. Movable property has been defined in the General Clauses Act to mean ‘property of every description except immovable property’. The definition in the Registration Act defines movable property to include property to include property of every description excluding immovable property but including standing timber, growing crops and grass.

Immovable Property Movable Property

1. It includes land, benefits to arise out of land, and things attached to earth.
2. 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.

3. 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.

4. 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; an mortgage-debt; right to cut grass for one year; a factory; etc.

5. Transfer of immovable property requires registration of the document. 1. It includes stocks and shares, growing crops, grass, and things attached to or forming part of that land, and which are agreed to be severed before sale, or under the contract of sale.

2. If the thing is resting on the land merely on its own weight, the presumption is that it is movable property, unless contrary is proved.

3. If the purpose was only to enjoy the thing itself, then it is movable property even though it is fixed in the land.
4. Examples

Right of worship; royalty; a decree fro sale of immovable property; a decree for arrears of rent; Government promissory notes; standing timber, growing crops and grass.
5. No registration is required to transfer a movable property.

1 General Clauses Act

 


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