General principles of transfer of property by act of
parties: inter-vivos, Concept and Meaning of Immovable
Property, Meaning and modes of transfer
Immovable properties
- The definition of immovable properties it is negative definition, which say what is
not an immoveable property.
- Section 3- of Transfer of property Act 1882-immoveable property does not include
standing timber, growing crops or grass.
- Section 3- of The General Clauses Act 1897- “Immovable property-
Land Benefits to arise out of land- Profit Appendary (Exp- Rent, fishing rights,
right to ferry, lease)
Things attached to the earth or permanently fastened to anything attached to the
earth. - Exp- building, wall, poll.
Definition of Immovable Properties-
Section 3- 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, except
standing timber, growing crops or grass, it also includes creepers and betel leave.
The definition of Immovable property given in the S.3 of Transfer of Property Act 1882,
is not exhaustive, it is the negative definition which exclude the things and says
immovable property does not include standing timber, growing crops or grass. The
definition in the General clauses Act also not exhaustive but it is somewhat positive
definition which includes land, benefits to arise out of land, and things attached to the
earth.
Things attached to earth, or permanently fastened to anything attached to earth?
a. Things rooted in the earth- trees and shrubs.
b. Imbedded in the earth- wall or building.
c. Attached to what is so imbedded for permanent beneficial enjoyment of that which
it is attached.
In Perumal v. Ramaswami, it was held that, oil engine attached to earth and the
attachment to lasts only so long as the engine is used. When it is not used, it can be
detached and shifted to some other place. The attachment in such case immovable
property.
,Land- considers 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- minerals, lakes,
ponds, rivers.
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 movable – building, walls, 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. - hereditary allowances, rights of way, lights, ferries and fisheries. A debt
secured by a mortgage of immovable property is an interest inland. A right to collect lac
from jungle, flash from pond, right to take minerals, rent from hat or market place.
Things attached to earth-
S.3 – defines the expression –attached to the earth- as including-
1. Things rooted in the earth,
2. Things imbedded in the earth,
3. Things attached to what is so imbedded,
4. Chattel attached to earth or building.
Things rooted in the earth-
Includes like trees and shrubs, but when such trees constitute standing timber, they are
not immovable property.
Shantabai v. State of Bombay- if the intention is to use them for 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, they would be timber and regarded
as movable property.
Similarly, growing crops, and grass are regarded as movable property.
,Things imbedded in the earth-
Includes such things as houses and buildings, there are certain thing which are imbedded
in the land but not an immovable property like 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 when in such a case if the intention
is to make the articles as part of the land
The rule is, if the article stands on the earth up to 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.
Things attached to what is so imbedded-
It includes, door, window of a house is attached to the house for the permanent
enjoyment of the house, when the intention Is not permanent enjoyment then it becomes
the movable property like fans, blinds.
Chattel attached to earth or building-
If a chattel, i.e., movable property is attached to earth or building, it is immovable
property.
Perumal naicker v/s Ramaswami Kone- A property is a movable property and for its
beneficial use of enjoyment it is necessary to imbed it or fix it on earth, through
permanently, that is, when it is in use it should not be regarded as immovable property for
that reason.
For example – sugar cane machine or oil engine.
Recognized as Immovable properties-
1. Right to collect rent of immovable property.
2. Right to collect dues from a fair on a piece of land.
3. Right of ferry.
4. Right of way.
5. A right of fishery.
6. A debt secured by mortgage and interest of a mortgage of immovable
property.
7. Hereditary offices.
8. Right to receive future rents and profits of land.
, 9. The equity of redemption.
10. Reversion of property of leased.
11. Right to collect lac from trees.
12. A factory.
Recognized as movable properties-
1. Right to worship.
2. A royalty.
3. A decree for sale of immovable property.
4. A decree for arrears of rent.
5. A right to recover maintenance allowance.
6. A machinery which is not permanently attached to the earth.
7. Government promissory notes.
8. Standing timber, growing crops, and grass.
Section 5, Transfer of Property
Section 5. "Transfer of Property" defined. In the following sections "transfer of
property" means an act by which a living person conveys property, in present or in
future, to one or more other living persons, or to himself and one or more other living
persons; and "to transfer property" is to perform such act.
When we analyze the above definition- there are few things which comes up regarding
Transfer of property-
• Transfer is an ACT- Giving and Taking of Rights- Active Act, Visible Act.
• Between two or more LIVING PERSON- by which a living person Inter vivos-
Living or Natural person and Artificial Person (Law existence, company).
• Conveys- transfer.
• Present or future- Future property not allowed.
• Property- Property to another person- To himself (Trust, minor or guardianship-
Rahubar Singh v/s Jai Jnder Bhadur Singh.
parties: inter-vivos, Concept and Meaning of Immovable
Property, Meaning and modes of transfer
Immovable properties
- The definition of immovable properties it is negative definition, which say what is
not an immoveable property.
- Section 3- of Transfer of property Act 1882-immoveable property does not include
standing timber, growing crops or grass.
- Section 3- of The General Clauses Act 1897- “Immovable property-
Land Benefits to arise out of land- Profit Appendary (Exp- Rent, fishing rights,
right to ferry, lease)
Things attached to the earth or permanently fastened to anything attached to the
earth. - Exp- building, wall, poll.
Definition of Immovable Properties-
Section 3- 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, except
standing timber, growing crops or grass, it also includes creepers and betel leave.
The definition of Immovable property given in the S.3 of Transfer of Property Act 1882,
is not exhaustive, it is the negative definition which exclude the things and says
immovable property does not include standing timber, growing crops or grass. The
definition in the General clauses Act also not exhaustive but it is somewhat positive
definition which includes land, benefits to arise out of land, and things attached to the
earth.
Things attached to earth, or permanently fastened to anything attached to earth?
a. Things rooted in the earth- trees and shrubs.
b. Imbedded in the earth- wall or building.
c. Attached to what is so imbedded for permanent beneficial enjoyment of that which
it is attached.
In Perumal v. Ramaswami, it was held that, oil engine attached to earth and the
attachment to lasts only so long as the engine is used. When it is not used, it can be
detached and shifted to some other place. The attachment in such case immovable
property.
,Land- considers 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- minerals, lakes,
ponds, rivers.
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 movable – building, walls, 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. - hereditary allowances, rights of way, lights, ferries and fisheries. A debt
secured by a mortgage of immovable property is an interest inland. A right to collect lac
from jungle, flash from pond, right to take minerals, rent from hat or market place.
Things attached to earth-
S.3 – defines the expression –attached to the earth- as including-
1. Things rooted in the earth,
2. Things imbedded in the earth,
3. Things attached to what is so imbedded,
4. Chattel attached to earth or building.
Things rooted in the earth-
Includes like trees and shrubs, but when such trees constitute standing timber, they are
not immovable property.
Shantabai v. State of Bombay- if the intention is to use them for 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, they would be timber and regarded
as movable property.
Similarly, growing crops, and grass are regarded as movable property.
,Things imbedded in the earth-
Includes such things as houses and buildings, there are certain thing which are imbedded
in the land but not an immovable property like 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 when in such a case if the intention
is to make the articles as part of the land
The rule is, if the article stands on the earth up to 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.
Things attached to what is so imbedded-
It includes, door, window of a house is attached to the house for the permanent
enjoyment of the house, when the intention Is not permanent enjoyment then it becomes
the movable property like fans, blinds.
Chattel attached to earth or building-
If a chattel, i.e., movable property is attached to earth or building, it is immovable
property.
Perumal naicker v/s Ramaswami Kone- A property is a movable property and for its
beneficial use of enjoyment it is necessary to imbed it or fix it on earth, through
permanently, that is, when it is in use it should not be regarded as immovable property for
that reason.
For example – sugar cane machine or oil engine.
Recognized as Immovable properties-
1. Right to collect rent of immovable property.
2. Right to collect dues from a fair on a piece of land.
3. Right of ferry.
4. Right of way.
5. A right of fishery.
6. A debt secured by mortgage and interest of a mortgage of immovable
property.
7. Hereditary offices.
8. Right to receive future rents and profits of land.
, 9. The equity of redemption.
10. Reversion of property of leased.
11. Right to collect lac from trees.
12. A factory.
Recognized as movable properties-
1. Right to worship.
2. A royalty.
3. A decree for sale of immovable property.
4. A decree for arrears of rent.
5. A right to recover maintenance allowance.
6. A machinery which is not permanently attached to the earth.
7. Government promissory notes.
8. Standing timber, growing crops, and grass.
Section 5, Transfer of Property
Section 5. "Transfer of Property" defined. In the following sections "transfer of
property" means an act by which a living person conveys property, in present or in
future, to one or more other living persons, or to himself and one or more other living
persons; and "to transfer property" is to perform such act.
When we analyze the above definition- there are few things which comes up regarding
Transfer of property-
• Transfer is an ACT- Giving and Taking of Rights- Active Act, Visible Act.
• Between two or more LIVING PERSON- by which a living person Inter vivos-
Living or Natural person and Artificial Person (Law existence, company).
• Conveys- transfer.
• Present or future- Future property not allowed.
• Property- Property to another person- To himself (Trust, minor or guardianship-
Rahubar Singh v/s Jai Jnder Bhadur Singh.
