PROPERTY LAW

TOPIC 1: MOVABLE/IMMOVABLE PROPERTY

DISTINCTION BETWEEN MOVABLE AND IMMOVABLE PROPERTY

The difference between movable and immovable property is relevant as there are
differences in the procedural formalities when transferring and different times
stipulated in the law of limitation in having recourse to the litigative system in case of
disputes

REASONS FOR DISTINCTION

Transfer of Property Act (TPA) governs and lays down rules specifically for the
transfer of immovable property

TPA specifies distinct procedure of transfer of immovable property vs. movable

property.
o

For Immovable Property:

Written document properly executed by transferor

Attestation required

Registration required

For Movable Property:

Simple delivery of possession

Intention to convey title by owner

Under the law of limitation:

o

Immovable: 12 years from cause of action

Movable: 3 years from cause of action

INTERESTS IN PROPERTY
An owner has three basic rights in property:

Right of ownership

Exclusive right to possess and enjoy the property

Exclusive right to alienate the property

A vested remainder, a contingent interest, a lease or a mortgage is simply a transfer of

interest and not absolute ownership

IMMOVABLE PROPERTY
In the Transfer of Property Act, 1882:

S.3 immovable property does not include standing timber, growing crops or grass

In the General Clauses Act, 1897:

Immovable property shall include land, benefits to arise out of land, and things
attached to the earth, and permanently fastened to anything attached to the earth

In 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 attached to the earth, but not standing
timber, growing crops and grass

STANDING TIMBER

Distinction must be made between Standing Timber and Timber Trees

Timber Trees are considered rooted to the earth as they still derive benefit from the
earth (profit a prendre) and are therefore considered immovable property

Standing Timber will be cut and used in a relatively short period of time, and are
considered movable property

For Standing Timber to be regarded as movable property:

o

It must be a timber tree

It has reached a particular stage where its wood is ready to be used as timber

It is intended to be cut reasonably early

RELATED CASES
SHANTABAI V. STATE OF BOMBAY
Issue: Was the right created in the case one of movable or immovable property?
Facts:

A executed an unregistered document styled as a lease in favour of his wife, W, for

the right to enter his estate and cut bamboo, fuel wood and teak

W was prohibited from cutting teak plants that were under the height of one and a
half feet

Lease was for 12 years for a consideration of Rs. 26,000/-

After enjoying the right for 2 years, the Madhya Pradesh Abolition of Proprietary
Rights Act, 1950 came into effect, and W was stopped from cutting any more trees

W claimed compensation from the government but gave up the claim on the
understanding that she would be allowed to work the forest for the remaining period

Permission was later revoked, but W continued working the estate and was stopped
by the authorities

W filed a petition under Article 32 contending that the right granted to her was a
right in standing timber, so she was entitled to compensation

Principles

If right was in Immovable Property, then irrespective of the fact of the change in
ownership, she would still be entitled to realise the right but provided it was
conferred with a written, attested and registered document

If right was in Movable Property, original benefits will end but there will be
entitlement to compensation for the remaining period

Decision

The court held that Ws right was that of timber trees, not standing timber, and
therefore was a right of immovable property, and she was not entitled to
compensation

The reasons given were:

o

Duration of the grant was 12 years, which cannot be considered a short time,
meaning that the trees on the estate were deriving benefit from the earth in
that period (profits a prendre)

As the right was of immovable property, the fact that the document granting
the right was unregistered meant that the transfer was invalid

THINGS ATTACHED TO THE EARTH

Things attached to the earth become part of the earth, and are hence called
immovable property

Under S.3 TPA, this category is divided into three sub-categories:

o

Things rooted in the earth except standing timber, growing crops and grass

Things embedded in the earth, as in the case of walls and buildings

Things attached to what is so embedded in the earth for the permanent

beneficial enjoyment of that to which is attached (Fixtures)

DOCTRINE OF FIXTURES

Under English Law, the Doctrine of Fixtures is understood using two maxims:
o

Quicquid plantatur solo, solo credit: Whatever is planted in the earth

becomes part of the earth, and whosoever owns that piece of earth also owns
the thing planted

Quicquid inaedificatur solo, solo credit: Whatsoever is built into or

embedded into or attached to soil becomes part of the earth and
consequently, whosoever is the owner of that piece of land will also become
the owner of the thing attached/built in or embedded

These maxims are subject to two exceptions:

o

They apply only when there is no contract to the contrary

With regard to trade fixtures, the maxims do not apply

Under Indian Law, the maxims undergo modification

The maxim quicquid platantur solo, solo credit does not generally apply in India

Two rules apply with regard to fixtures embedded by persons other than the owner:
o

He is entitled to remove the attachment if he vacates the premises provided

he leaves the land in the same state as it was previous to the attachment

If he allows the attachment or improvement to remain on the land and the

owner derives benefit from it, he is entitled to compensation for the value of
the attachment or improvement

WHEN A CHATTEL BECOMES A FIXTURE

There are three tests to ascertain whether a chattel after attachment has become a fixture or
not:

Mode of attachment and consequences of its detachment

o

If a thing or machine, because of its sheer weight, goes down in the earth, the
presumption is that it is still movable

In case it is attached using some external aid such as the construction of a

foundation, or it is fixed to the floor with the help of nuts and bolts, the
presumption is that it has become part of the earth

How easily an object can be removed is also taken into account, i.e. if no
damage is caused by removal, it is considered movable, and if damage is
caused, it it considered immovable

The rule is that you cannot destroy the principal object by taking away an
accessory

Object or intention of attachment

o

Where the object is to fix the attachment permanently or for a sufficiently

long period of time, the presumption is that it has become a fixture

If the intention is only to enjoy the attachment for a specific short duration
and then remove it, it is still considered chattel

By whom attached
o

Presumption is that nobody would want to make a permanent improvement

of the land belonging to someone else

If the attachment if made by the owner of the land, it is presumed to

become a fixture

If it is attached by someone other than the owner, it is considered chattel

RELATED CASES
DUNCAN INDUSTRIES LTD V. STATE OF UTTAR PRADESH
Issue:
Whether certain properties can be considered movable or immovable
Principles:
As per the Doctrine of Fixtures
Facts:

A company agreed to transfer its fertilizer business including plant and machinery

The parties had treated them as movables and had delivered possession of the said
plant and machinery as such

Decision:

The machinery forming the fertilizer plant were permanently embedded in the earth
for running the fertilizer factory and at the time when they were embedded, were
done so by the owner with the intention to use them permanently

In the very nature of the user of these machines, it was necessary to permanently
attach them to the ground

As per the rules pertaining to the Doctrine of Fixtures:

o

Mode of attachment: Permanent

Object/Intention: To be used for a sufficiently long period of time for the

production of fertilizer

By whom attached: The owner of the factory

Thus, the court held that these were immovable properties, and therefore physical
delivery of possession without a written, attested and registered document could not
convey the title to any other party

BAMDEV PANIGRAHI V. MONORAMA RAJ

Issue:
Whether the property concerned was immovable or movable
Principles:
As per the Doctrine of Fixtures
Facts:

Person A was conducting business under the name Kumar Touring Talkies for
exhibiting cinema shows

He obtained land from the Raja of Mandasa in 1957 and built a temporary cinema
structure and temporary tent, and purchased a cinema projector and diesel oil engine

The equipment was embedded and installed in the earth by the construction of a
foundation

A obtained a temporary license for one year from the concerned authorities

He allegedly entrusted the management of the business to his friend B, who then
colluded with the Raja and obtained a mortgage in his name

A issued a notice in May 1961, calling upon B to render correct accounts of the
management of the venture

B denied his liability to account for the management in a written reply in June 1961

A became sick in 1963 and died in August 1965, whereupon his widow, W, field a suit
in July 1966, praying or a declaration that she was the owner of the company and
equipment therein, of which she prayed for the return of the latter properties

Principles:

Court first must decide the nature of the property concerned

If it is found that the disputed property is immovable, it will go ahead and decide the
case on merits

If it is found that the property is movable, the case would be dismissed as time barred

Decision:

The court noted that by the very name of the business, Kumar Touring Talkies,
showed that the exhibitions were purely temporary

Therefore, even if the property is attached to the earth, the intention was to have them
fixed temporarily

The license was for a period of only one year and there was no guarantee that it
would have been renewed

Finally, the persons who fixed the properties to the land were not the owners of the
land

Therefore, the court held that these were movable properties and the suit was
dismissed as time-barred