Immovable Property

This article is written by Amisha Gupta pursuing B.A.LL.B from George School of Law (Calcutta university).

Immovable Property

In section 3 the definition of immovable property is neither clear nor complete. it simply says that immovable property excludes standing timber, growing crops or grass. It is not clear as to what it includes. In any Act, if the meaning of any word is not given clearly, the meaning of that word may be found in the General Clauses Act, 1897, if given there. According to section 4 of the General Clauses Act, immovable property includes land, benefits to arise out of land and, things attached to the earth. The definition of immovable property given in the general clauses act is applicable to the Transfer of Property Act.

Immovable property includes -

(1). Land :

 It means surface of the earth . It includes everything upon the surface of the land under the surface of the land and also above the surface of the land. 

E.g.- soil or mud deposition, pond ,lake , river, sub soil, minerals, coal or gold mines, underground water, space above the land ,etc.

(2). Benefits to arise out of land : 

The 'benefit' which a person gets from land , is also an immovable property. Any right which is exercised over a land from which one may get benefits ,that right is called beneficial right or beneficial interest of that person ( or any other immovable property) and by the exercise of which, a person gets a certain profit or gain would be his intangible immovable property. 

E.g.- right of tenant to live in the house, right of fishery i.e. Right to catch fish from pond or river , right of ferry, right to extract coal or gold or minerals from mines , etc

(3). Things attached to the earth : 

The expression things attached to the earth has been define separately in Section 3 of the Transfer of Property Act .  

i . Things embedded in earth - things which are fixed firmly in the earth and becomes part of the land of things embedded in the earth. For example houses buildings walls or electricity poles are immovable property because they are the things embedded in the earth.  

ii . Things attached to what is so embedded in the earth - Where a thing is attached to something which is embedded in the earth for its permanent beneficial enjoyment, the things so attached would also become immovable property. Therefore, Doors, windows or shutters of a house are attached to its wall for permanently enjoyment of that house. However, it may be noted that the thing attached must be (a) attached permanently and must also be (b) attached for the beneficial enjoyment of the house or building . 

iii. Things rooted in the earth - Trees, plants or shrubs which grow on land are rooted in the earth and are immovable properties. However, there is an exception to this general rule are : 

(a) standing timber, (b) growing crops, or (c) growing grass. 

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Reference : Transfer of Property Act 1882 by R.K.Sinha