Chapter 2

. nd Concept of Property and kinds of

Meantng a p
roperty

Meaning of Property , . ,
'P operty' is derived from the Latin term Propenetat and the
The term r • d
French equivalent term is 'proprius' which means a thing 'o~ne :
The dictionary meaning of the word 'Property .is th1~gs o_wned;
· , Accord·ng 1 to sali·nond , 'property' means propnetofy nghts
Possess1ons. . .m rem •
As per John Austin, 'property' is a right availing against the world (;us m rem).
The term 'property' is a generic term of extensive applic~tion, and w~le
strictly speaking it means only the right which a ~rso~_has in ~elation to something
or that dominion or indefinite right of user and dispos1t1on which one may lawfully
exercise over particular things or objects, it is frequently used to denote the
subject of the property, or thing itself which is owned or in relation to which the
right of property exists 'property' in its general connotation, means anything or
matter having some value convertible into money.
Property can be defied as being the right to possess, use, enjoy, and dispose
of a thing. The thing mentione~ does not always have a tangible or physical
existence. It may be an easement or anything else that can become the subject
of private ownership.
'Property' is no men genralissimeem, and extends to every species of
valuable and interest including real and personal property, easement, franchises,
and other incorporeal hereditaments. Property signifies every species of property.
It comprehends all a man's worldly possessions.
'Property' is defined to be "the unrestricted and exclusive right to a thing;
the right to dispose of a substance of a thing in every legal way; to use and
exclude every one else from interfering with it."
The term 'property' includes any property over which any person has
disposing power which he may exercise for his own benefit.
Property, as a legal concept, is the sum of bundle of rights and in the case
~f tangible property would include the right of possession, the right to enjoy the
nght to retain, and the right to alienate and so on.
~ccording to its legal definition, the term 'Property consists in the free
use, enJoyment and disposition by a person of all his acquisitions without any
control or diminution, save only by the laws of the land. '
" 'Property' is the most comprehensive of all terms which can be used, in
as much as it is indicative and descriptive of every possible interest which the
party can have." 1

28
 Meaning and Concept of Propert y and kinds
U-l, Ch .2] of Property 29
According to Section I of Police Act, 186 1, the word 'property' includes
:uiy 11 ,ovable property, money or valuable security.
A'f. per Section 2( 11) of the Sale of Goods Act, 1930, the term ' property'
111c;1ns the general property in goods and not merely a special property.
According lo Section 2(d) of the Provincial Insolvency Act, 1920, 'Property'
includes any property over which or the profits of which any person has disposing
power which he may exercise for his own benefit.
To sum up, property is indicative and descriptive of every possible interest
which a person can have.
Nature of Property
In Transfer of Property Act, 1882 the word 'Property' has been used in
any one of the following senses:
i) Tangible material things e .g., land and houses, furniture and jewellery
and pictures.
ii) Rights which are exercised over material things e.g., right to enjoy
and possess, right to sell or to make a gift of things.
iii) Rights which are not exercised over any material things, e.g., a right
to repayment of a debt.
' Property' means the proprietary right in rem which means such rights
which are available to a person against all persons without naming any one and
breach of that right can be measured in money.
In good olden days the meaning of the term property was all legal rights
of a person whether personal or proprietary and in rem or in personam; so not
only land, building and goods were property, but the children of a person or debt
due against another were also property; the children and slave were like chattels
subject to purchase and sale in the market.
In its widest sense 'property includes all a person's legal rights of whatever
description; as per old views "a man's property is all that is his in law." Blackstone
speaks of the property (i.e., right) which a master has in the person of his
servant and a father in the person of his child.
"The inferior," Blackston says, 'hath no kind of property in the company,
case or assistance of the superior as the superior is held to have in those of the
inferior." Sottobbes says, "of things held in property, those that are dearest to a
man are his own life and limbs; and in the next degree, in most men, those that
concern conjugal affection; and after them riches and means of living." In like
manner Locke tells us that "every man has a property in his own p_erso~." _H e
further says that" a man has right to preserve his property, that 1s, his hfe,
liberty and estate."
 Law of Property
3'"0~-------~~~~~~~~:~~;:~
~
l d . .
owe sens e pro pert y incl ude s not
fU-1, Ch
a ll a pers on's righ
ln a seco nc an d w1rr T h 1·
. L
· t· ry ·is oppose o · d t his pers o na l ri ghts . e ·orm er con stitut t,
but onl y his prop ne ct < • e,
h 1· le the 1at te,. con·stt' tute his stat us o r pe rsonal conditic)n
his esta te or prop erty w . . .
In this sense a man ,s land cha tte 1s, s·hares· and the de bts due to him arc hi~·.,
· I . , 1·fe or libe rty or repu tat10n .
Prope rty but not 11s l
whi ch is in current prac tice , pro per ty me . I d
.
. . .·
In a third app h~a tion , u es not
·
h whi ch are both pro prie tary and in re
eve n all pro pne t'at·Y ngh ts .
but on1Y t ose
. . • 111
. t ngh ts tn - per.wnam. The law '
of pro pert y ,s the law of
and not the pro pne ary
· ·ghts in-rem the Iaw O t· Prop riet ary righ ts in p erso nam bein g
prop riet ary n . f bl' f ons Acc ordi ngly , a free hold or leasehol
distinguished from it an the law O O ,~ah, . d
esta te in han d or a pate nt or a cop y ng t JS· · erty · but a deb t or ben efit of a
pro p '
con trac t is not.
The prop erty can be clas sifie d as pres ente
d belo w:
Pro pert y
... Lr -- -- -- -- -- -- L' -- -~ +
...,. propria z·
Jura-in- · Jur a-in -rea iena

l Lea se serv itud es Sec urit ies etc.

Materi-!1 things
I
+ .
irnm aten althi ngs
I I I
Lan d
I I I I
Cha ttels obje cts Cop yrig hts Pate nts
Tra de Mar ks etc
Thu s, it is not only mat eria l obje ct whi ch is
prop erty but an enc umb rance
i.e., mor tgag e, lease, ease men t is also a prop
erty . It is not only wha t a pers on
own s but also wha t he uses and thus he may
not own the mat eria l obj ect but he
may own a righ t in that. E.g. A is own er of
land and B has a righ t to pas s over
it thus B has also a prop erty i.e., a righ t to pass
ove r it, it is enc umb ~an ce and is
prop erty.
In its narr owe st sens e prop erty incl ude s only a
con cret e thin g corp orea l
prop erty whi ch is subj ect of own ersh ip. Acc
ordi ng to Joh n Aus tin ' own ersh ip'
is a righ t avai ling aga inst the wor ld (}us
in rem) ove r a dete rmi nate thin g,
indefinite in poin t of user, un-r estr icte d in poin
t of disp osit ion, and unli mite d in
poin t of dura tion . In a broa d sens e, term 'pro
pen y' incl ude s all righ ts rela ting to
physical objects, con ting ent inte rest and inte
title. rest of a pers on in pos sess ion without

Kinds of property

. Pro~erty can be; (i)_~~al prop erty or pers ona

l prop erty ; (ii) tang ible prope~
or mtang1ble prop erty ; (111) corp orea l prop erty
or inco rpo real pro pert y; and (1v)
mov able prop erty or imm ova ble prop erty .

I
 Me a1u11g anrl (. oncq,t o( r rnpertt1 unci /...,n ,I,
·V-1, Ch.2] of Prn11crt 11 11
1. Rea l and Personal propert y
--- --- --- -
The wnrd ' Pn' pl'rt) · inclutk , hnth rL·.11 .111d 1w1-..i111 ti p11,p\·11 , 111 1 ,i~•l ,llld
onl y hut not in lnd1.1
J) Real propt'rt)
Re.ii pmpl'n ~ 1..l)mp11 ,l.'-.. l.111d .111d 111ll: 11.·, 1, thnn11 L ,1p.1hk , ii h\_·111 c t1i:.itrd
:1:- ~c> paral~ ,uhJl'L' l" nl prnpnl \ 1he 11.· 1111 it·.d 111 1111n1, d r11,11L·
, th,11 thl·
prnpertJ ad11\l ltc d 1 11' "PL'l·lli L· 11.·u 1,c1~ .llld .,, 1!11 , .\," 1111 .•111.ilh .dh i\\nl 11 1-.
11
\\here the c la1m a111 h.ul ., lrcd,nld 1111,·1 1·, 1 11· ,d p1111wrt \ \\ , 1-. 11mk1 , t,,od 1,1
cnmpn, c ;.1 11 frcl.'hnld 11\lnc,i- - 111 l.111d Rr.d 1'' •1 '1\·11 , 1 I.ind 111 hurldrn ~• ,,r ,111,
thing pcnna11 1.·ntl ~ .1tt:1l"lwd 11 111r 11111111111· p .111 Pt 11 \ II pn111 ,11u·nt l1't1 uc, 1,r
fi\urc, thou gh nn t t:i,tr nL·d 111 IIK l.rnd h111 111trndn l 111 ht· pcm1 ,11w111 h\ ·d • l
10 the lnn<l a rc 1c~:mk d .1-. p.111 ,,t thl· l.111d ind 1h:.:1c ll11 l· .1. re.ti pn,1-,.·rt , \ I,
intcrc,i-- 111 land L' :! . ,c, \ 1tudr-. '-\I\ h .,... I t~• ht, ,,t \\ .,. . I ,~hi 111 lr l•ht .md mort ')r•·
are rq; ar<lL'd ., ... re.ii p1 \11x·rt, I~-, .111,r thn 11, 11r t11 , 111 l.111d
b) Prr1;onal Prnµ'-' rt~
Pa-.ona l pw r~:11, -.·11mp1 ,,c, l'\')o(XI -. ,,r thmf, 11\<l\ 1hl · l'fr, lf\ •I pr 'lW't;•
compn, e, .111 fom,, ,,, pn 1 p~:tt\ 11th(! 1h.1n ff,ll rro,~:tt, i1n•Jl\:1't', Ill f t' ,r n .1 ,,t
which nnl~ J pt> r, \'IMI .1...:111)11 l.1, ,~ 1-. , l,1,-.cd i-, pn.,nn.11 pn,p,:rt \ I \lf' ,1, ro'I Ju l
ta.1-.ing nf rnr" .1bk, \·.1lk,\ \ h.mcl-. lil..c ·.,uk tt~- rcmcth "' ·' " i Jl\:l''-IJO 11 11..0 in
in\\ hich th~ l}\\ ner '- ,,uld nnl , bt.11n ,11ot:ol1, rc,t1tut11,n hut h t I 11, h,.: l.tm'~rit
1

"ith peL" un u r~ 1..nmr'l\:1\-.Jll,,n ,,r ,l.11n i.•~,

Per, onal p m~rtll' ' .m: <>I t\\111.. l,h'<:' ( h.md-.. rc~I 10•.I '-h~md .. r~r,,,,t.i.l
Chattel-, rc..:,il .m: f'"iJ., rj11,1k1n~ ,11 th~ n.1turr ,ii l.rnd .m.J ,11 ,tt.:: ,..- thie rn.
conspicu ou" C\,tmpk ,.., turnh hcd b, the h:nn nl H.\r-.. ,,1 k..1,d\\ l,I iruc.·t,·,:
h'
1

The lea.\ehl>IJcr 11111.:r1..· ,1 \\ ..t'> rq.:.,r~l .,, .l , h,tlld 111h.:rc,t. but 1t I..\ ,t, , l.\.v•,,h,·-.l
,L\ a chane I re.ii ,rnu.: It ,1.. ..i , dt:rt\ cd out l,mll tir rt' .ll l·,t.Ht· .uitl
h.1d th(' l{\uh,1
of immo\'a biltt,, ,., hie h made rt jk m In re.th',.
The n.~..,iduc of pcr~ rn_al pt o pcrt) .d tr r c,1.. IUJ1t1!,t 1:h.-urd-, re.ti 1, dc , ,gn.\Cnl
chattch pc~ona l c:<amplc~ t1 adl' rrt.11k, am.I ~t1p) ny.t1t,
Distinction betwee n Real and Penonal Property
l) 111e differcn~c bi.!twccn n.:al anJ ~r.,1>11ul pt\Jl)Crt) ,, th.11 ,,r1~1rMll)
right~ in rc~ll pmpcrty could be , ui;d !or hy ~h,it w,1., II.um, n ,1, .i ~.ll :t,·lwn.
and right"> in per-.,onal property by wh:.it \\a,, knDwn ;!-', a pcf'ltt1.1I .t~ ll\)n
2 1All real properti es are immova ble 1n nuturc whtk rn.1Jufll) ur p,-twmd
propenit!~ arc movable in nature.
J )Whtk all real propcrtic!-i are v1),iblc l1kr land .10J hu1hl1oi.z . 111;,.1w 11, (11
per\ onal propcrtic~ are not v,-,ihle like ratent ri ~ht cup>• nght. ~t '.l\ith... 111e ll
 ' - -- - --~~=:::::~~~~
-':__
Law of ProperttJ

.i, Real propertY has permane d wit

nt charac ter while most of the Per
llJ-1 ('\_
s
, ona1
. h the real property.
orary when com pare
pn'\"ICrt ~ ,~temp ·es ful fil the basic needs of the peo
~ \ :-\II Lhe real properti k. (House) where ple like R.oti
\i~x,dt l(;\{'-\da lClothes) and Ma an as all the personal properr
I
fulli l thl' wa nts or desires of the peop tes
e. . .
. several generation s while some persona\
b ) The real property passes
on or mo re oeneration s.
pn'{'l'rt ic, are pen.shable, some pass on two o
· . f d fro m one person to another and
7) Real propert1~s are trans erre required
ndian Reoistration Act, 1908 and the
h..1 be wri tten and registered
under the I
lndian Stamp Act. 1899 whenever th are t;ansferred but writing and
ey
registration are not necessary for the t sfer of personal property.
ran
~ Annuity, \ease, patta certificate etc ., are con
sidered as personal properties
though they are related with real proper
ties.
\I. Tangible and intangible proper
ties
Chattels are regarded as personal proper
ty, they are classified into_: i) A
tangible movable and ii) intangible mo
vable. A tan gible m?vab_le chattel is any
physical object which can be seen felt
and touched that 1s neither land nor
pennanent fixture to land, for example a
goods like a table, a book, a watch, a
rupee. But land is a tangible immovable
property.
Movable property which is intangible ma
y be called, 'intangible movable
chattel,' for example, copyright, trade ma
rk, patent goodwill.
Ill. Corporeal and incorporeal
property (Dominium corporis
Dominium Juris) and
Property may be classified into: i) corpor
eal and ii) incorporeal.
a) corporeal property
Salmand says 'corporeal property is the
right of ownership in material
things." Corporeal property is some ma
terial object of thing which affects the
senses and may be seen or handled, such
as land, chattel, house building, chair,
table etc. The person who has the righ
t to the aggregate use of an object is
called the owner of the object, and the
object is called his property. But this
right means a right of general use only. It
does not mean that the right is absolute
or unlimited . Generally there are two kin
ds of restrictions on one's use of his
property. The first kind of restrictions are
those that are imposed by law, and it
is done in the interest of society. The sec
ond kind of restriction are those that
are encumbrances on the property. The righ
and heritable. t of ow'"nership is general, permanent

b) Incorporeal property
~ corpore~I property is intangible property
which cannot be seen or handled.
bu_t which co~s1~ts m_erely in legal righ
t. It includes two kinds: (i) Jura in re
aliena, and (11) Jura in re propria
over material things.
t--~,~, j
~
 Meani11g and Concept of Property and ki11ds
u-I, Ch.2] of Propert·y 33

i) Jura in re aliena or Right in re a/iena: A right in re a/iena is a right

which one has in the prope11y owned by another. ll is also called an encumbrance
and may be defined as a right which limits or derogates from some more general
right belonging to some other person in respect of the same subject matter.
There are four kinds ,of jura in re aliena, namely:
I) lease, 2) servitudes, 3) securities, and 4) trusts.
ii) Jura in re propria over immaterial things: The subject-matter of a
right of property is either a material or immaterial thing. A material thing is a
physical object, the immaterial things which are recognized by law as the subject
matter of rights are the various immaterial products of human skill and labour.
The immaterial product of a man's brain may be as valuable as his land or his
goods. The law, therefore, gives him a proprietary rights in it, and the unauthorized
use of it by other person is a violation of his ownership, no less than theft or
trespass is. These immaterial fonns of property are of fi ve kinds: They are i)
patents, ii) literary copyright, iii) artistic copyright, iv) musical and dramatic
copy right and v) trade marks.
IV. Movable and immovable property
Corporeal property is classified into movable and immovable and they
, are called chattels and land in English Law.
a) Movable Property
Movables are goods; furniture, distinguished from real or immovable
possessions; things substantive which have locality and may move or be moved.
Movable property means 'things admitting of being removed or displaced'
or a property 'able to be moved.' Movable prop~ f!Iean~ all p_r~ rt_>-'. ~-~~ is '
not attac~ to land or pennanently J asten~j to land or building and things
served from the land-. '7·-·- • - - · - • - - - . . - -
-·- --- --- -
The words 'movable property' are intended to include corporeal property
of every description except land and things attached to the earth or pennanently
fastened to anything which is attached to the earth.
r
(__Mov~ble property has not been .defined under the Transfer of Property
Act. Se.Qtion_3(3b) of~ . General Cla~ses Act_! 897. st~tes th.at mo'!'.ab!e property
me~s "property of every desc~pect immo_~ _bl~_pro~~y." ~~-~o_v~p_l~
Property has been defined under Section 2(9) of the Registration Act, 1908 to
. -.......c.---- ------ ----- ---- ------ . - ·-- . - --·- -
m~lu~~~Standing ti!!]J:>~&m:owing ~! ~ s anj_grass, fr~_i! upo_!l and juice in trees,
ana propertyof every__o_t!ter q~scrig_tion,, except iIIITT19.Yallle..property." )
· ------ ·•-··••·
Movable property consists of things severed from the land, for example,
.

earth dug out of the earth and used as manure or for agricultural or building or
other purposes. Stones quarried out from a rock become movables. Bricks
from a wall which has been pulled down become movables. Under the Indian
Law, growing crops agreed to be severed from the land are regarded as goods
or movables, as soon as the contract to sever from the land is made.
TPAct-3
 Law of Prope rttY - -
34 - - - -[U-
-I, Ch
~
Movable property m . d Standi.ng um . berm-owing crops an
d grass, thino
clu e_s- . ut any intet,ntio
n of pialong it· ~erman cs
·
-d \and or attached ent
place on to it w1tho h d to land
but capable of bemg sh
part of the \and, sue h as machinery, attac e ifted
for that place. '
. H da Electric Supply
In Harda Mum.ci.~a It ty v ar Co. (AIR 1964 Mp
101), electricity is cons
. va bl e property.
idered as mo o India Ltd. (AIR 19
I h d Chandiran v. 68 SC 1475),
In Bu c. ~n Bank if
insurance policies are tre as movable property.
ated . .
As per decisions ?f co t . different cases, the following nghts are of
ur s m -- --
movable propef!Y_:..
:. __ _: -: --
,_,A') right to use t he fruct of fruit. trees, say right to enjoy palm nuts
usu d (AIR 1954 Mad 949)
(Sultan Ahmad v. State ).
of Ma ra s,
. t ven th ough charged on
/2) right to recove
r roam en ance ..allowance e
i~ ov ab le property (A . (AIR 1929 All 28
lta! Begum v. Brunaram 1)).
'3) Government Prom , nam (SWR ·141)).
'-" issory notes (Doorga
. 4) Royalty (Krishna Ki. v. Poo
d N
shore v. Kusun a ya di Collieries (A IR 1922
Pat 36)).
5) right of worship (Esh
un Chandra v. Man M
ohini (4 Cal 683)).
, 6) right to receiv . . h
e offenn gs m cas or n ki d from yajmans (Kodulal
Beharilal (AIR 1932 Si v.
nd 60)).
V 7) a decree for sale .
of immovable property
v. Mohd. Faizullah (13 on a mortgage (Abdul
All 89)). Mazid
•~ / 8) right of purcha
ser to have lands regi
Panchi (19 Born 43)). stered in his name (B
hikaji v.
'-/ 9) Electricity (State
of AP v. NTPC Ltd., (A
IR 2002 SC 1895)).
Immovable Prop erty
i,' ~i :d ... :im m ~v ~t
,le '.means p~rmanent,
atld the property must be fixed,.n?t liable to_be
attached to propert~ pe removed
rm~e11tly. ·
Salmond says the follow ··
ing kinds of property is
property (that is, a price included in the immov
of land in English Law able
/ ):
,_ 1) A determinate po
rtion of the earth 's surfa
ce
, 2) The ground beneath
the surface down to th
._ 3) A reasonable spac e centre of the world
e above the surface ne .
free beneficial enjoymen ce ss ary and sufficient for the
t of the surface of land
(i.e., has) in law a grea . C ok e says, "The earth ha
t extent upwards, not th
been said, ~ut of a~re (i. on ly of w ater and hath (i.e. has)
e., air) and all other thin
law recogruzes no n~h~ of gs even upto heaven.
ownership in the air spac "But this
us.e, but merely P:oh1b1ts e at all, or no right of ex
all acts which by their na .elusive
with the full eOJoyrnent ture or their proximity
interfere
and use of surface. H
owever, in England th
ere is a
 .\ fr a11ing and Concept of Prnperty and kinds
of Prnperty 35

, ;~,.,r,' " h1~h prl'' ides that the flight of aircraft at a reasonable
height above
.•, . i-,.1,,m,1 in 1h )t actionable at the sui t of the owner or occup
ier of the lc1nd

.,· ·'"
~' ,\ J: 1.'t,je~t:- ~~1~0,·e or under the surface in its natural state, for exc1mple
~- ~,1-,,l:- .rnJ , e,::eta non tanni ng part of the
land: and
agency
~, ..\ii thmg~ attached to the earth i.e., all objec ts placed by human
.. buiJding.
,,: ,,; ~mJ.:-:· the mrfac e. ,\·ith the intention of pennanent annexation e.g
1' . ..: , . , , ,~ , • {," ' '" ' etc
•
\ \ :;.H ~ • p ,,. l1 1t,.~-.._ .
'-.H .,:V l ,_,

Definitions of ' immovable Property'

es Act,
I;~ lnJ.1a. :1..:-:ordi ng to Section 3 (26) of the general Claus
'. ~J - _..1mm0, ·3bJe property shall include land. benefits to arise out of land, and
~>.::0 .n:-2..::hed to the e.arth, or permanently fastened to anything attached to

A.:-..Y1rJin~ to Sec. 2( 1) of the GoYern..'11ent \1ana£ement of Priva

te Estates
- -
includes land, buildings, hereditary a!Jowances ,
.\,',. : so 2. •immoYable property·
out of land,
:-:ftt:- k" \,·ay~. lighL ferries . fisheries or any other benefit to arise
ing which is
2.:1.: thin?-- 2.ttach~d to the earth or permanently fastened to anyth
iTTJ,'-h~d t (1 the e.art.h but not standing timber, growing crops
or grass.
shall
:\s per Sec. .2 oi the Trustees Act, 1866, "Immovable Propeny"
t \ !'end to and include me.ssuages, tenements and heriditamen
t, corpo real and
,Th.' (.'1"p0re.ai. oi eYery tenure or description, whatever may
be the estate or intecest
therein ...
o\·able
According to Section 2(6) of the Registration AcL 1908. ··Imm
?i-(.) peri}·· · includ es land. build ing~ redit uy allo w~,
right to ways, lights,
fot-rie.--. fisheries or any
other benefit to arise out of land and things attached- to
to the earth
mt eanh. or permanently fastened-to anything i ;fiich ·is attached
- --
1'u_t nor standi.ng . timbe--- r. gr<J\\
--- ___
ing crops nor grass.·'
__::::..---
to land,
Immovable property consists of (1) land, 2) that which is affixed
3-~ thar \\·hich is ~i~~ ]?r~_ n~t! Q.la nc!:_4) that_~ c~ ~o
,7al,1e-by
la" . . - .
·Land include5: i) a determination portion of the earth's surface; ii) possibly
e; iv)
the rolumn of space abcn-e the surface: iii) the ground beneath the surfac
all objects which are on or undeT the surface in its natural stage
e.g., minerals:
,·; buildings_ walls and fences.
e.g.. trees
·Thin gs attached to earth· includes things rooted in the earth
dded in the
he.a..ing fruits. things embedded in the eanh e.g., an anchor embe
ple doors
h nd to bold a ship, thing s attach ed to what is so embedded. for exam
~d \\i.Ddow~. chatte l attached to e.artb or building.
es
Benefits to arise out of land or iocidenrnl or apparent.al to land' includ
li~ts. ferrie s and fisheries, hereditary allowances, a debt decreed
ri.rlits 0r wav.
- .. -
~ a mortg age of unmoYable property.
 36
Law of Property lu., <·
----.:.'-h.
Things which are declared as immovabl<.: property in diffen.:nt judgr~
are considered as immovable properly. l
Definition of 'immovable property' given in the Transfer o
Property Act
The Transfer of Properly Acl, 1882 docs nol gi vc explanatory .
t 'Th d · •%
comprehensive definition of the words 'immovable p~·oper Y· _e c~initic,n 11
the term 'immovable property given ~n Section 3 of the Tr!!l~fer ol P!:.C.Peri
Act, 1882 is negative,~ Lsays ·~~1,iio~ble Q.!:QI)Cft~ not mclude Stµntjjn
ti~f, growrng cro ~ rass."_!_t_excl_u~es_ ~~rta,~ h_!_n_gs attached_to Ian,
from its purview. In add1t1on, the Transl er ol P,operty Act, 1882 def 1ncd lh
ter'iii-·•auachedw earth' in its Seciton 3' thus: "A~e.£1 ~ the earth" mean\
__.. - ~a) rooted in the earth, as in the case trees and shruds; b) embedded in th
\ earth, as in the case or wal ~s or b_uildings; or c) attache? to_w_h~t is so e~ bedcte
l for the permanent benelicial enJoyment of that to which 1t 1s attached.
1

Exception: The three exceptions given to immovable property in th

Transfer of Property Act, 1882 are:
I) Standing timber: Standing timber is regarded as severable from th
~ ~-,--- -
'----
land on which they stand and, therefore, they are not regarded as immovabl
property.
'Timber' means a tree that is chiefly meant to be used either for how
building or for the burning purposes or for the furniture or the boat. Trees an
shrubs rooted in earth are considered as immovable property but where sue
trees constitute 'standing timber' they are movable property. The expressio
'standing timber' is used to denote trees whose wood is intended to be used fo
building and repairing houses, bridges, ships etc., and for industrial purposes. Ii
English Law the term 'standing timber' refer to oak, ash or elm tree. In India
neem, sheesham, babool or teak, bamboo trees etc., are treated as standin1
timber.
.But fruit bearing trees stand on a different footing. Generally they are no
standing timber. The mango, jack fruit, Jamun, Mahua and the flowers etc., an
mainly planted and nourished for their fruits and the flowers and are as fruit-
bearing' trees. But shLsham, ~em, guava, nimboo, teak, sag~an, beeza, saal,
tinsa, arjun, haldoo, chandam, mundi, tendu, Khamhar, and many others, like
babool oak teak etc., a r e ~ and not for fruits though some ol
them produce fruits. These are called timbers. It makes no difference whether
they are rooted in earth or uprooted therefrom. But fruit bearing trees standson
different footing.
A f uit bearing tree would not be standing timb_g and would be classedas
i m ~ r t y . Sometimes ru1t bearing trees like mango trees might be
used for building o·r r~pairing house_s. Then they have been regarded as standing
 Meaning and Concept of Prnpe1-ty and kinds
U-1, Ch.2] of Property 37

rop and becomes movable property. Test for determing whether trees and
~rninovable property or standing timber is what is their common use? And to
which category do the trees belong ? Mahua, mango, jack fruit, jamun trees
etc., do not C(?me within the ambit or purview of standing timber. This is because
the intention in respect of them is to plant them for tc_tking and using their fruits
and not to use them f~r wood. Such being· the i~~ they are immovable
prope11y._ But when the Int~ntion of the owner is that the tree is to cut _down
soon and to be utilized as timber, the tree would be standing tirnb~r. A tree may
be treated as standing timber its wood is suitable for use for building houses,
bridges, ships etc where the owner of a tree is interested in further vegetative
growth of the tree, it is a tree (immovable grop_~rty~ but, if, it is intended to~
--
the reasonably early, the ....__tree
.. _ is a stanJ:ljng timber (movable property) .
2) Growing crops: Crop mea.ns._a..pJaRt-g-Fow.A-for_fuod or other purpose
and includeafl vegetable growths in the form of fruits, leaves banks or roots. ·
'A growing crop' necessarily means a crop which is in existence. and
which is in the process of coming to fruition. A crop which exists in contemplation
of law from the time the seed is deposited in the ground until after it is harvested;
an interest in land.
Growing crops are movables they include grain crop~ like wheat, barley,
rice, gram vegetable plants like Lirke, kadoo etc., flower plants, creepers like
pan and angoor, sugarcane etc. They do not own independent existence beyond
their produce.
3) Grass: 'grass' m,eans 'vegetation consisting of short plants with long
harrow leav; ~-:-M~fn use of grass appears to be for fodder purposes. Gross _is a·
movable pr~eerty whether cut or not. Its no 9ther use is possible. Therefore it
is movable. - · · · · · ·
Meaning of the term 'Attached to earth' in relation to
immovable property
The words 'attached to earth' denote the term 'fixtures' of English law
which is based on the maxim 'quick quid plantatur (or aedifficature) solo,
solo cedit"; which means whatever is planted on (or built in) the soil belongs to
the soil. When a chattel (thing) is attached to the soil so as to become a fixture,
the person who was owner of it when it was a chattel loses his property in it for
it immediately vests in the owner of the soil.
As per Sec. 3 of the Transfer of Property Act, 1882 the term 'attached to
earth' gives the following meanings in India;
1) Things rooted in the earth
Trees and shrubs are rooted in the earth and therefore are immovable
property but where such trees constitute 'standing timber' they are movable
property. Trees and shrubs are immovable property but as soon as trees or
 op:__e_r-=ty~ ~ - ~ - ---.:[U-I, Ch
_ _ _ _ _ __ .:::.L:.:.:a::.w:__o..:..f_P_r__:
3318~ _
=- ~
they are de tached from the land and are no more a pan of
plants are cut d own . bl
the land. and thus losing the character of an immova e property and becoming
movable property. . . .
Babool trees and seesham trees are ordinanly stand1~g timber anct are
therefore, movable property although they are things roo~ed m the ~arth. Tree~
which bear fruits are not standing timber but are considere d as immovab1-
prope1ty. There are, however certain fru it bearing trees, such as mango tree:
which are also used as timber. So, whether s uch trees are to be regarded a1
movable or immovabl e property depends upon the circumsta nces of each case.
In State of H.P. v. Moti Lal Pratap Singh & Co (AIR 198 1 HP 8 DBJ,
it has been held that if the intention is to use the trees for p~rpos~ of e?joying
their fruits they will be regarded as immovab le property. But 1fthe mtention isto
c ut them down sooner or later for the purpose of utilizing the wood for building
or other industrial purposes, they would be timber and would according ly be
regarded as movable property. Similarly growing crops and grass although rooted
in the earth are not within the definition of the term immovab le property. There
are all things usually contempl ated as severable from the soil and are regarded
as movable property.
Where trees rooted in the each constitut e standing timbe r they are
exempted from the connotatio n of the term immovab le property and trees the
wood of which is intended to be used for industrial pwposes should be regarded
as timber. In Baijanth v. Remdhar (1963 All LJ 33 FB), Sisham Babool and
Neem trees were held to be standing timber.
Mango trees and Jack fruit trees are considere d as timber trees if the
intention is to use the trees for constructi on work.
In Joseph v. Joseph Annamma (AIR 1979 Kerala 219), it has been held
that if the intention is to enjoy the trees or the fruits there of without cutting
them down they are not standing timber but would be immovab le property. If
the intention is to cut down the trees sooner or later and utilize them for construction
or other industrial purposes they are standing timber and movable property.
Before a tree can be regarded as ' standing timber' it must be in such a state
that if cut, it could be used as timber and when in that state it must be cut
reasonabl y early.
2) Things embedded in the earth
'Embedde d' means a thing whose foundatio n is laid well below the normal
surfa_ce 0 ~ the e~, for example, walls and buildings . There are, however.
certa.m things which are embedde d in the earth yet they are not immovabl~
property as for example, an anchor imbedded in the land to hold a ship 'Embedded .
further means fixed firmly in a surro unding mass. There are two tests for deciding
whe the~ a thing __is embedde d in the earth or not: i) the degree or mode of
annexatio n, and u) the object of annexatio n.
 Mt•1111i11g 11111/ Co11ci·11t <~!' f>rn11erfy m11l killtls
t(( l'rn11crty 39
U-1, Ch.21
The degree nr a1111L·xatio11 can he wi tnessed where lhe chattel is so annexed
that ii cannot he removed without great dumage lo the lund. For example, the
ltH)i11S 1hat arc altaclwd to the l'lum, and beams ora mill or tip up
seats fastened
10
the noor or a cincnia hall , advertis ement hoardings firmly embedded in the
earth arc regarded as the par! or the land and are, therefore, immovable property
when. howeve r, where an article stands on the earth by its own weight and
which can be removed without slructurnl damage are mere chattels and are
movables.
Embedment in the earlh can be observed from the object of annexat ion
where block of stone is placed on the top of the other without any mortar or
cement for the purpose of r,m11ing a dry stone wall would become part of the
land and, therefore immovable property. But, when the same stones are deposited
in a builders yard and for conveni ence sake stacked on the top of each other in
a form of wall would remain movable property.
3) Things attached to what is so embedded
'Things attached to what is so embedded' must be one which is for the
permanent beneficial enjoyment of that to which it is attached. This category
includes doors, windows and shutters of a house, which is embedded to the
earth. These are therefore, things attached to earth and immovable property.
But ornamental fittings, such as electric fans, window blinds, shashes, pier
glasses, tapestry, paintings, mirrors are not so attached for the simple reason: i)
that these are not permanent but only temporary or transitory or occasional
fittings; and ii) are not in any sense beneficial to the wall or door or house.
Therefore these are not immovable properties.
Two tests to say, that an attachment is immovable property are the
following:
i) the things must be attached permanently; and
ii) must be attached for the beneficial enjoyment of house or building or
to which it is attached.
It is clear from the above that the -term 'immovable property' includes
three things namely land benefits to arise out of land and things attached to
earth. It excludes three things namely, standing timber growing crops and grass.
Judicial decisions regarding to the immovable property
The following incorporeal rights are judicially recognized as immovable
property
1) A right of ferry (Krishna v. Akilanda (13 Mad 54)).
2) A right of fishery (The Bihar Eastern Ganget ic Fishermen Co-
operative Society Ltd. v. Sitavi Singh & others (AIR 1977 SC 2149)).
3) A right to use water of Stream (Allam Sher v. Ram Chand (1808 Punj
Ref No.2 P5)).
 Problems to be solved
1) X sold away fruit bearing trees to cut and take away immediately from
the land. A dispute arose between the transferee and transferor for the payment
tax and whether the sale of trees cover the immovable property or movable
property?
Solution: In Decide Marshall v. Green (33 LT 400 124 WR 75) the
transaction was a sale of fruit bearing trees to be cut and take away immediately.
It has been held that fruit-bearing trees are immovable property when the intention
of the parties is that the fruit of the trees should be enjoyed and not that the
trees should be cut down for use as timber. Ordinarily, the terms of agreement
would tell as to what is sold and what is bought. The fruit bearing tree would
lose its nature when agreement is to cut it and remove. Time may some time
help to know the nature; timber or fruit bearing but it is not decisive. The
contractor of timber may not cut the tree for months but fate of tree would not
change. It will remain timber awaiting to be cut when what is sold is only the
right to cut and enjoy the tree as timber, no interest in immovable property is
transferred. Here the intention of parties was to cut the trees and to take them
away. There was no intention of nourishment of the trees. Hence it would not
cover the immovable property. Therefore it need not be registered under the
Registration Act as the sale related to movable property and state could impose
sales tax on transferee.
 :.-~~-
\ - - - - - - - --- _:'~-•~11~1,_'.''.:-·_,,_,....'l;:.'-.'''_·r_y_ ~- --~- -:-~I u
_ - 1, l·1i.'I
(,
.
)) \. L' l\l l'l'L'd 11\lt) 1111 11g tL • • • •111 with y 11\al till· tra11s l'l."l'l'l' had :i ri"~l
L llll , ,
- · • ,, I \\ ,
l"lll nm\ l'n jn\' IL'ak ll't'L'S llH· 11 pc t.-ll ,l I l ll' · I .YL"ll'S and d11n11 g w h1d1 llll' lra 11 :-; r
• '. • . . . . . .. . . , l't\•l'
Ind h' lll)\.1ri~h the lt't'L'S fl)I' further µruw th nl t11l' lrn ·s Im 10
111 Yl.:'. ".S- Wht'lhl'r
•
st11.· h l' t,nlr:t l' l 1.n 1. l 1l L• lt ". lk ll'L'l'S• woul d t·u111c unde r 11HlVahk or 1111111o v;,hl
l:
pt"t)pl 'rl\'0

S(~lution: 111 S,•1·11i ( 'J,, •rriur 1•. St111f/l(lll(l f/iu 11 _l I H9: ) 'lO Mad
'.) ~ 1•:B), i1
hns bt·t·n hdd that parlit·s L'ntcn:d into a cont ral'l Wtl h rl!_k re 10
n~c such 111 nh~,·
e~prc ssly l.lr by implil:ntio n ngrcc d that th1,; 1'.:a11sf1.:r~~1.: 0 1 illc 111
_t :h~r s h.di t' 11j_l>y
for \on~ or short perit)d. soml' distin ct hc11d1t to an ~c m~t 01
lb1,; l,uu._l rn_i which
the'.' timhc r ~row s. Thl' lrcL'S passc s with land 011 whic h ti stH d
" s as tnc tdi..:111 or
\and unless~specirically rdain l'd by the selle r. h11t sak of thl'
lrec. wou ~d twvl!r,
can y the \and o n which it stunds along with it. Tree ma_y be
sold a~ ltmhc r or
may be sold to rema in as fruit bearing. It was held that n ghl
to c ul It ecs as and
when they grow for a period of four years . relate s to immo
:ahle _prope rt y and
the purch aser of teak trees from the promoters sho uld get
ti rcg1stcn.: d umkr
the Regis tration Act, 1908 as growing the leak trees, nouri shme
nt come s untll!r
the immo vable property.
3) X and Y enter ed into a contr act for the supp ly of bamb
oo for a numher
of years on paym ent. The State Gove rnme nt levie d sales tax treati
ng the bamboo
contract as mova ble. The party resist ed it, decide.
Solution: In State of Oriss a v. Titag hur Pape r Mills Co. , Lid
( 1985 )
SC 1293, the partie s enter ed into a contr act for the supp ly
o f bamboo and the
comp any woul d pay mone y for the right to cut bamboo for
a numb er o f years.
The State Gove rnme nt there after levie d sales tax on the comp
any, treat ing the
bamb oo contr act as movable. The comp any resisted . It has
been held that the
bamb oo contr act was in respe ct of bene fit to arise out of land,
and the contr act
was for a numb er of years, there fore, in woul d come unde r immo
vable property
and the State Gove rnme nt could not impose sales tax on the
com pany.
4) X and Y enter ed into a contr act for the sale of Beed
i leave s (Abn us
leave s) over a perio d of only one year. The State Gove rnme
nt levie d sales tax.
The party resist ed it - Deci de.
Solution: In Ansari v. Board of Revenue, AP (AIR 1969 AP 399)
il has
been decid ed that the right to take away beed i leave s over
a perio d of only one
year shou ld not come unde r immo vable prop erty and they shou
ld be considered
as mova ble prop erty. Such contr acts need not be regis te
red as immo vable
prope rty. The sale of beed i leave s, bamb oos and stand ing
timber are tiahlc for
the sales tax as they are mova ble prope rty.
5) X orall y grant s Y, for a perio d of five years for Rs. I000/
- per year the
right to catch and carry away fish from his lake. Is the gran
t valid ?
Solution: In Anan da Bchra v. State of Orissa ( 1956 ) SCJ P.
96), it 11as_
been held that such a right to catch fish from his po nd or
lake arisin g oul 01

tr,
 Mea11i11g nnd Co11c<'1'' of Prope rty and kinds
U-1, Ch.21 of f'rop<'rf-y
45
immovable property (i.e. , lake). Theref ore. the sale ' ri ght tn catch fish' from
lake or pond comes within the purvie w of immo vahlc property under the genera
l
clauses Act, 1897. The sale require s registered instrument for its validity under
Section 54 or the Transfer or Property Act. Theref ore. the oral grant for any
period. is invalid and canno t pass away any title in fovour or Y.
6) X entered into contra ct with Y and sold his mango trees to export
mangoes to other states on yearly contract. Wheth er such sale comes under
movable or immovable?
Solution: ln Jagdish v. Mangat Pandey ( J\ IR 1986 All 182), it has b1::en
held that there was no intention to cut the tn~cs, hence it would co me undei
immovable proper ty and if the intention o r the parties is to cut the trees then
it
would come under movab le property. Where the owner o r a tree i~ interested
in
further vegetative growth or the tree. it is an immov able property. Herc. in this
case, there was no intention to cut the trees .rnd the sale would come under
immovable property.