INDEX

S.NO. PARTICULARS PAGE NO.

1 INTRODUCTION 4

2 CONCEPT OF PROPERTY 4-5

3 IMMOVABLE PROPERTY 6-8

4 MOVABLE PROPERTY 8-9

5 CONCLUSION 10

6 BIBLIOGRAPHY 11

INTRODUCTION
The word 'property' is derived from the Latin term 'properietate' and the French equivalent
'proprius' which means a thing owned. The concept of property and ownership are very
closely related to each other. There can be no property without ownership and ownership
without property. The concept of property occupies an important place human life because it
is impossible to live without property.

Concept of Property
Property has a very wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right considered as a source or
element of income or wealth. The right and interest which a man has in lands and chattels to
the exclusion of others. It is the right to enjoy and to dispose of certain things in the most
absolute manner as he pleases, provided he makes no use of them prohibited by law. The sea,
the air and the like, cannot be appropriated, every one may enjoy them, but no one has any
exclusive right in them.

When things are fully our own, when all others are excluded from interfering about them, it is
plain that no person besides the proprietor, who has this exclusive right, can have any claim
either to use them, or to hinder him from disposing of them as he pleases, so that property,
considered as an exclusive right to things, contains not only a right to use those things, but a
right to dispose of them, either by exchanging them for other things, or by giving them away
to any other person, without any consideration or even throwing them away.

Meaning of Property

In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal
implications. It is the legal domain, which institutes the idea of ownership. The basic
postulate of the idea is the exclusive control of an individual over some ‘thing’. Here the
most important aspect of the concept of ownership and property is the word ‘thing’, on which
a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his
property. Property is any physical or intangible entity that is owned by a person or jointly by
a group of people. Depending on the nature of the property, an owner of property has the
right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to
exclude others from doing these things.

There are some principles related to property rights which includes :

1. Control over the use of the property.
2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

Definition of Property:

According to “Sir John Austin”, the term property is sometimes used to denote the greatest
right of enjoyment known as to law excluding servitudes. Sometimes, life interests are
described as property. Even servitudes are described as property in the sense that there is a
legal title to them. Sometimes property means the whole of the assets of a man including both
the right in rem and right in personam.

According to “Bentham”,"property is nothing more than the basis of s certain expectation of

deriving thereafter certain advantages by a thing the reason of the relation in which we stand
towards it. There is no image, no visible lineament which can property the relation that
constitutes property. It belongs not to physics, but to metaphysics. It is altogether a
conception of Mind. To it, all or any of these physical circumstances failed to assist in
conveying the idea of property."

There are different definitions are given in different act as per there uses and needs.But in the
most important act which exclusively talks about the property and rights related to property
i.e. Transfer of property act,1882 has no definite definition of the term property. But it is
defined in some other act as per their use and need.

Those definitions are as follows:

Section 2(c) of The Benami Transactions (Prohibition) Act,1988 defines property as

‘Property’ means property of any kind, whether movable or immovable, tangible or
intangible, and includes any right or interest in such property.

Section 2(11) of The Sale of Goods Act, 1930 defines property as ‘Property’ means the
general property in goods and not merely a special property.

Kinds of Property:

Property is essentially of two kinds- Corporeal Property and Incorporeal Property. Corporeal
Property can be further divided into Movable and Immovable Property. We will discuss here
movable and immovable property in detail as follows :

 Immovable Property
Section 3 of The Transfer of Property Act 1882, “Immovable Property” does not include
standing timber, growing crops or grass. Thus, the term is defined in the Act by excluding
certain things. “Buildings” constitute immovable property and machinery, if embedded in the
building for the beneficial use thereof, must be deemed to be a part of the building and the
land on which the building is situated;

Section 3(26) of 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”. This definition of immovable property is also not exhaustive;

Section 2(6) of The Registration Act,1908 defines “Immovable Property” as under:

“Immovable Property includes land, building, hereditary allowances, rights 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”.

In Section 3 of Transfer of Property Act 1882, the definition of immovable property is

neither clear nor complete. It simply says that immovable property excludes standing timber,
growing crops or grass. But this definition is not complete. On the basis of the definition
given in the Genereal Clauses Act and Transfer of Property Act , the Expression ‘immovable
property may be defined properly in the following words.

Immovable Property includes-

(i) Land : Land means surface of the earth. It includes everything upon the surface of
land, under the surface of land and also above the surface of land. Anything upon the
land, so long as it is not removed from there, shall be part of the land and as such an
immovable property. Thus, soil or mud deposited on the surface of the earth would be
immovable property. The water collected in a pit or accumulated in the pond or lake is
also immovable property because the water is part or parcel of the surface of the
earth.Therefore, all the rivers have been regarded as part of the land and as such
immovable property although the water is moving. For example : sub-soil, minerals,
coal or gold mines,etc.Being part and parcel of land, the space above the land is also
immovable property.

(ii) Benefits to arise out of land : Besides land , the ‘benefit’ which a person gets from
land, is also an immovable property. One may get a benefit from a land under some
right. A right by the exercise of which a person gets certain benefits is called beneficial
right or beneficial interest of that person. Beneficial interest in a property is called
intangible property. Thus, any right which is exercised over a land and by the exercise
of which a person gets certain profit or gain would be his immovable property.
Therefore, right of tenant to live in the house of his land-lord is an immovable property
 of the tenant1. Similarly, right of fishery i.e. right to catch fish from pond or river, is
also an immovable property. Since river or lake water is an immovable property and
boats or steamers are used on such waters, therefore ‘right of ferry’ has been held to be
an immovable property2.

In Kumar Pashupati nath v. Sri sankari3, it has been held that the Right to extract
coal or gold or minerals etc, from the mines is also an immovable property.

(iii) Things attached to the earth: Things attached to the earth means:- things embedded
in the earth, things attached to what is so embedded in the earth, and the things rooted
in the earth.4.

a) Things embedded in the earth :- Things which are fixed firmly in the earth and
become part of the land are things embedded in the earth. For example,
houses, buildings, walls, or electricity poles are immovable property because
they are things embedded in the earth. Where the things are just placed on the
surface of the earth without any intention to make them part of the land, the
things may not be immovable properties even if they appear to be fixed in the
land. Therefore, the anchor fixed to the land in order to stop the movemtn of a
ship are fixed in the land due to their own weight, are not things attached to
the earth.

In Narayana Sa v. Balaguruswami5, it has been held by the court that the

vessels were movable properties because they were fixed in the land not with
intention of any beneficial enjoyment of the land as such, they were fixed for
trade purposes.

b) 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 beneficial
enjoyment, the thing so attached would also become immovable property.
Doors, windows or shutters of a house are attached to its walls for permanent
enjoyment of that house. Therefore, the doors, windows and shutters are
regarded as immovable properties. However, it may be noted that the things
attached must be (i) attached permanently and must also be (ii) attached for
the beneficial enjoyment of the house or building. For example, electric bulbs,
window-screens or the ornamental articles are movables because such things
are attached to walls not for the permanent beneficial enjoyment of the house
but only for use and enjoyment of things itself.

1
Municipal Corpn. Bombay v. Lala Pancham, AIR 1965 S.C. 1008.
2
Krishna v. Akilenda , (1885) 13 Mad 54.
3
AIR 1957 Cal.128.
4
Section 3 of the Transfer of the property act,1882.
5
AIR 1924 Mad 187.
 c) Things rooted in the earth;- Trees, plants or shrubs which grow on land are
rooted in the earth. With the help of their roots, they keep themselves fixed in
the earth and become part of the land. Untill cut down the trees are
permanently attached to the land where they are grown. Therefore, all trees,
plants, herbs and shrubs is that they are immovable properties. However ,
there is an exception to this general rule Standing timber, growing crops and
grass though rooted in the earth are movable properties.

In Mahadeo v. State of Bombay6, It has been held that right to take forest produce e.g tendu
leaves etc, and soil for making bricks are come under the immovable properties.

In Ganpati v. Ajmer7, it was held that right to hold exhibition or fair on one’s land are
immovable property.

 Movable Property

The definition of the movable property is given in differently in many acts. Some of the
defintions are as follows.

Section 3(36) of The General Clauses act,1897, "movable property" shall mean property of
every description, except immovable property.

Section 22 of The Indian Penal code 1860, The words “movable property” are intended to
include corporeal property of every description, except land and things attached to the earth
or permanently fastened to anything which is attached to the earth.

Section 2(9) of The Registration act 1908, “movable property” includes standing timber,
growing crops and grass, fruit upon and juice in trees, and property of every other
description, except immovable property; and (9) “movable property” includes standing
timber, growing crops and grass, fruit upon and juice in trees, and property of every other
description, except immovable property;

A property which is not immovable is movable. Movable property has not been defined in the
Transfer of property Act. Section 3 of the act excludes standing timber, growing grass and the
crops from the definition of immovable property. This simply means that standing timber,
growing grass or crops are movable property because what is not immovable may be
movable.

Movable Property includes-

1. Standing Timber - Standing Timber is movable property. A green tree rooted in

the earth is called a standing timber provided its woods are generally used for
timber purposes i.e. for making houses or household furniture. If there is trees, the

6
AIR 1959 S.C. 735
7
1955 S.C.R 1065.
 woods of which are fit to be used for making doors, windows or furniture, the same
tress which under general rule is an immovable property shall be treated as standing
timber and such as movable property. For example, the woods od sheesham , neem,
babool or teak tress are used for making houses, doors, tables or chairs, therefore
these tress have been held to be movable property.

In Moti Singh v. Deoki Singh 8, it has been held that fruit-bearing tress are not standing
timber. They are planted and grown for taking fruits etc. from them and not for taking their
wood. Therefore, fruit bearing tress are immovable property.

In Shanti bai v. State of Bombay9, the supreme court held that if the owner of a tress is
interested in the further vegetative growth of the tree ( intends to keep the tree alive) it is
immovable , but if it is intended that the tree is to be cut reasonably early, the tree is standing
timber (movable).

2. Growing Crops and Grass – Growing crops and growing grass are movable
properties. Growing crops means standing in the field. Although the crops, say of
wheat and barley are nothing but a collection of plants rooted in the field yet, they
are not immovable property because every crop is bound to be cut in the near future
when it becomes ripe. The crops in the field have no use except their produce. The
crops of wheat or paddy etc, and also the vegetable crops of potato are movable
properties. Sugarcane crops and crops of indifo and crops of grapes and crops of
betel leaf are also movable properties.
Like crops, the growing grass rooted in the earth is also a movable property. Grass
in the field has no other utility except that it could be used as fodder for the
cattle.for this reason It is bound to be cut down or be grazed by some animals.

In Altaf begum v. Brij Narain10, it has been held that right to get maintenance allowance
even if its payment is a charge on some immovable property.

CONCLUSION
At the end, we conclude from the above findings that there is no proper definition which
define the immovable or movable property in the Transfer of Property Act,1882. So with the
help of the General Clauses Act, we came to know that immovable property includes land,
benefit to arise out of land and things attached to earth. So the definition of General clauses
act is applicable to the Transfer of Property act,1882. It may also be concluded that
immovable property includes land and land means and includes everything upon the surface
of earth, under it and also above it.

Also, movable property not defined in the Transfer of property act,1882. If in any act, if the
meaning of any word is not given clearly, the meaning of that word may be found in the

8
AIR 1936 Pat 36
9
AIR 1958 SC 532
10
AIR 1929 ALL 281.
general clauses act , which states that property of every description except immovable
property.

The main difference between the immovable and movable property is that immovable
property are required to be transferred generally through written and registered document
where as movable property may be generally be transferred by delivery of possession, writing
and registration is not essential.

Examples of Immovable Property: right to collect lac from its trees, right to fishery, right of a
maha Brahmin to receive dues at a funeral etc.

Examples of Movable property : Royalty, Copyright, decree for the arrears of rent, right of
worship and right to offer prayers, etc.

BIBLIOGRAPHY

1. Avtar Singh, “Textbook on the Transfer of Property Act”, Universal Law Publishing
Co. Pvt. Ltd., 2006.

2. Gour, Hari Singh, “The Transfer of Property Act”, Delhi Law House, 2004.

3. Mulla, “The Transfer of Property Act’1882, 19th Edition, LexisNexis Buttereworths,

4. Nandi, N., “Transfer of Property Act’ 1882”, Dwivedi Law Agency, Allahabad, 2006.
5. Row, Sanjiva, “The Transfer of Property Act’1882”, 18th Edition, Universal Law
Publishing Co,, New Delhi,

6. Shukla, S.N., “The Transfer of Property Act”,