Define 'immovable property'. Explain the term in reference to things attached to earth.

Question: Define 'immovable property'. Explain the term in reference to things attached to earth. [JJS 2018]

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Answer

In India, the term of ‘immovable property’ is defined in the following statutes:-

(i) The Transfer of Property Act, 1882

(ii) The General Clauses Act, 1897

(iii) The Indian Registration Act, 1908

Section 3 (1) of Transfer of Property Act 1882 (hereinafter referred as TPA) defined the term ‘Immovable property’ as:

“Immovable property” does not include standing timber, growing crops or grass.

Section 3 (25) of the General Clauses Act, 1897, which also applies to TPA, defines

immovable property as including "land", "benefit arising out of land and things attached to the earth, which means rooted in the earth, or embedded in the earth, or permanently fastened to anything embedded for its permanent beneficial enjoyments."

The definition above includes three things namely: a) Land, b) benefits to arise out of land, and c) things attached to the earth.

In the General Clause Act, the definition of immovable property is similar as of "attached to earth" in TPA. However, there are no exceptions in the General Clauses Act as mentioned in TPA excluding three things i.e., standing timber, growing crops and grass.

Section 2(6) of the Indian Registration Act defined ‘immovable property’ as herein below:

"Immovable property includes; land, buildings, hereditary allowances, right 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."

Now, "Things attached to earth" means three things which are mentioned below:-

(a) things rooted in the earth, for example, trees and shrubs;

(b) things embedded in the earth, for example, walls and buildings, etc,

(c) things fastened for the permanent beneficial enjoyment of anything so embedded, for example, doors, windows, ceiling fans, etc.

In Sukrey Kurdeppa v. Nagireddi, 6 Mad HCR 71, Mr Justice Holloway has made the following relevant observation for the definition of ‘immovable’ property:

"Movability may be defined to be a capacity in a thing of suffering' alteration in the relation of place; immovability, incapacity for such alteration. If, however, thing cannot change its place without injury to the quality, it is immovable."