SECTION 3 OF TPA: IMMOVABLE PROPERTY
INTRODUCTION
Section 3(26) of The General Clauses Act1, 1897, says that immovable property shall include
land, benefits to arise out of the land, and things attached to the earth, or permanently fastened
to anything attached to the earth. As per Section 3 of the Transfer of Property Act2, immovable
property does not include standing timber, growing crop and grass. The word standing timber
includes Babool Tree, Shisham, Nimb, Papal Banyan, Teak, Bamboo, etc. The fruit bearing
trees like Mango, Mahua, Jackfruit, Jamun, etc., are not standing timber, and they are
immovable properties. The definition given under Section 3 of the TPA Act is a negative
definition and cannot be considered as satisfactory.
IMMOVABLE PROPERTY – CONCEPT AND DEFINITION
By combing both the definitions given by the General Clauses Act and the Transfer of Property
Act, we may say that, the term, “Immovable Property” includes land, benefits to arise out of
lands, and things attached to the earth, except standing timber, growing crops and grass.
Examples of immovable property includes a Chattel embedded in earth, Easement, Right of
way, Right of enjoyment of immovable property under lease, a right of fishery, A right to
collect rent of immovable property and interest of mortgagee.
Land: It means a determinate portion of the earth’s surface, which may be covered by
water, the column of surface above the surface, the ground beneath the surface. All the
objects which are on or under the surface in its natural State are included in the term
land. Also, all objects placed by human agency on or under the surface with the
intention of permanent annexation are immovable property, e.g., Building, wall, fences.
Benefits to arise out of land: Apart from physical point of view, every benefit arise
out of land is also regarded as immovable property. Registration Act also includes as
immovable property benefits to arise out of land, hereditary allowances, right of way,
lights, ferries and fisheries. In Anand Behera v. State of Orissa3, the right to catch away
1
Sec. 3(26), The General Clauses Act, 1897.
2
Sec. 3, Transfer of Property Act, 1882.
3
AIR 1956 SC 17.
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Immovable Property: Section 3, TPA
fish from chilka lake, over a number of years, was held to be an equivalent of profits
a pendre in England and a benefit to arise out of land in India. Similarly, a right to
collect a rent and profits of immovable property, right to collect dues from a fair or heat
or market on a land are immovable property.
Things attached to earth: Section 3 of transfer of property defines the expression
‘attached to earth’ as including (1) things rooted in the earth, (2) things embedded in
the earth, (3) things attached to what is so embedded, and (4) chattel attached to earth
or building.
Standing timber: The word standing timber includes Babool Tree, Shisham, Nimb,
Papal Banyan, Teak, Bamboo, etc. The fruit berating tree like Mango, Mahua, Jackfruit,
Jamun, etc., are not standing timber, and they are immovable properties.
Growing crops: Growing crops includes creepers like pan, angoor, etc., millets
(Wheat, Sugarcane, etc.), Veg like Lauki, Kaddo, etc. These crops don’t have any own
independent existence beyond their final produce.
Grasses: It can only be used as fodder, and no other use is possible. Therefore, it is
movable. But a contract to cut grass will be an interest in chattel, so is immovable
property.
Minerals: Upon transfer of immovable property, things not only rooted to it, but also
anything found deep down below the property goes along with the transfer. All minerals
below the land sole are immovable property.
CASE LAWS
Anand Behera v. state of Orissa4: Right to profits a prendre are benefits arising out of land and
are immovable property. For example, a right to enter upon land and to carry away fish from
pond is a right to profits a prendre and is, therefore, immovable property.
ShantaBai v. State of Bombay5: Right to enter on the lands in order to cut down trees and carry
away wood.
4
Ibid.
5
1958 AIR 532, 1959 SCR 265.
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Immovable Property: Section 3, TPA
V.P.Fakrudheen Haji v. State Bank Of India6: In view of the definition of the term "attached to
earth" in S.3 read with S.8 of the Transfer of Property Act, even if the title deed or the schedule
of property attached thereto does not mention that the house in the property which is the subject
of transfer is also transferred, the transferee would get title to the house situated in the property,
unless the house is specifically excluded from the transfer."
6
FAO.No.292 of 2008, decided on Dec. 19, 2008.
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