Property Law: Immovable and Movable Property

Types of Property

Immovable & Movable Property

This note outlines the key aspects of movable and immovable property as defined under Indian law, with references to relevant sections of various acts and landmark cases.

Overview

  • Property Law:
    • Property Acquisition under the Constitution.
    • Transfer of Property under Civil Law.
      • Voluntary.
      • By Law (Insolvency; Indian Succession Act).

Ambit of the Legislation

  • Preamble: The Transfer of Property Act (TPA) is designed to define and amend certain parts of the law relating to the transfer of property by the act of parties. It is not exhaustive.
  • The TPA covers inter vivos transfers, meaning transfers made during the lifetime of a party.
  • Transfers effected by operation of law (e.g., inheritance, insolvency) are generally not governed by the TPA.

Movable vs. Immovable Property

Procedure for Transfer
  • Immovable Property: Requires a written agreement, proper execution (attestation + stamping), and registration (if the value is more than Rs. 100).
  • Movable Property: Simple delivery of possession of the property + an intention to convey the title by the owner to the recipient is sufficient.
Limitation Period for Filing Suit
  • Immovable Property: 12 years.
  • Movable Property: 3 years.

Definitions of ‘Immovable Property’

Sec. 3, TP Act, 1882

Immovable property does not include standing timber, growing crops, or grass, unless there is something repugnant in the subject or context.

Sec. 3 (26), The General Clauses Act, 1897

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.

Sec 2(6) of The Registration Act, 1908

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, or grass.

'Attached to the Earth' (Sec. 3, TPA)

  • (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.
  • (c) Attached to what is so embedded: For the permanent beneficial enjoyment of that to which it is attached.

Land & Benefits Arising Out of Land

  • Land: Includes ground, soil, or earth; houses and other buildings upon it.
  • Benefits Arising from Land:
    • Profits-a-prendre: a right to take something from the land of another.
    • 'Benefit' – Not defined; subjective.
    • Roughly - Where a person using the land derives a profit, the right will be a right in immovable property – no particular test developed by courts.
    • Examples: right to receive future rent, right to pluck fruits in the future, right to hold a bazaar/ fair.

Case Law: Ananda Behera vs. State of Orissa

Facts
  • The petitioner was allowed to catch and carry away fish based on an orally executed sale.
  • The Orissa Estates Abolition Act, 1951, was enacted.
  • The petitioner claimed infringement of Art. 19(1)(f) and Art. 31(1) of the Indian Constitution.
  • The key question was whether the sale was valid and whether the property in question (fish) was movable.
  • The dispute concerned fishery rights in the Chilka lake, which was part of the Raja of Parikud's estate.
  • The petitioners had contracts with the Raja, obtaining licenses for catching and appropriating fish from specific fisheries in exchange for payment.
  • The petitioners argued that the transactions were sales of future goods (fish) and thus movable property.
Court's Observation
  • The court acknowledged that the lake is immovable property and part of the Raja’s estate, which vested in the State of Orissa.
  • The rights transferred were more than just the right to obtain future goods under the Sale of Goods Act.
Judgment
  • The court determined that the sale was the right to catch and carry away fish in specific sections of the lake over a specified future period.
  • This amounted to a license to enter the land coupled with a grant to catch and carry away fish, i.e., a profit a prendre.
  • The court stated that If a profit a prendre is regarded as tangible immovable property, then the