The term Property has been widely used in various aspects of life. Since the beginning of mankind, there is the existence of property. People in ancient kingdoms and states also acquired property and belongings for their living and gradually developed the laws related to it. In ancient India, people used the term property for things belonging to them and which had certain legal rights and ownership on it. Property means “a thing or things belonging to someone.” Property is anything that is owned by a person and who holds legal rights on the property.
Various Personal laws and statutes were used for governance and law and order. The property was regulated by Zamindars and Subedars of villages. Later, in the British Era, English Law governed the people of India and the British codified the laws including the Transfer of Property Act, 1882.
The Transfer of Property Act, 1882 developed the statutes for the transfer of property in India and related to it. It emphasized the social and economic aspect of “property.” A property can be anything that is owned by any person. It is a thing that is owned by an individual who holds legal rights and can claim it according to the law. Property can be used in various forms. Both tangible and intangible substances come under a property.
In India, the property is used intangible things like creation, idea or innovation as well as intangible things like real estate, land, etc.
Property is divided into many kinds on a different basis. Property can be of the following types:
- Real Property and Personal Property
- Moveable Property and Immovable Property
- Absolute Property and Qualified Property
- Corporeal Property and Incorporeal Property
For the transfer of property, it is important to know the basic meaning and difference between Moveable and Immovable property.
Moveable and Immovable Property
Property can be divided into two: Moveable Property and Immovable Property.
(A) Moveable property
Moveable Property, as the name suggests, in the general sense, means goods or things belonging to someone which can be moved from one place to another. For example, jewelry, table, etc. It is personal property and is movable. Personal property of any kind which can be moved comes under the moveable property. It is defined under the following statutes in Indian law :
(1) General Clause Act, 1977 – According to Section 3 (36) – “Movable property shall mean the property of every description, except immovable property.”
Property that does not come under the category of immovable property is known as moveable property. For instance, anything like cars, clothes, chairs, computers are moveable property whereas land is an immovable property.
(2) Registration Act, 1908 – According to Section 2 (9) – ‘Moveable property’ includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.”
Moveable Property includes standing timber like trees which are used for commercial purposes like Bamboo, oak, neem tree, etc. growing crops and grass which can be harvested from the land after cultivation comes under moveable property as it can be used for commercial purposes. Fruits and juices and other products obtained from trees and bushes are also moveable properties like – rubber, wax, fruits, etc. Things that can be used daily that are moveable, irrespective of it growing on an immovable property like land are called moveable property.
(3) The Indian Penal Code – The Indian Penal Code also defines Moveable Property. According to Section 22 – “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.”
Things that can be moved are moveable property unlike the things which are permanently attached to the earth are moveable property. Substances that are grown on immovable property and which are used legally for trade and other businesses come under a moveable property. Things that cannot be moved and are permanently fastened to the earth are not moveable properties.
(B) Immovable property
Immoveable Property, as the name suggests means property that cannot be moved or is fixed permanently on the surface of the earth. By the surface of the earth, we usually mean land or a real estate property. Therefore, the immovable property includes land and substances permanently attached to the land. Various statutes define immovable property.
(1) Transfer of Property Act, 1882 – Section 3 of the Act defines Immovable Property as – “immovable property” does not include standing timber, growing crops, or grass.
It explains that timber, grass, and growing crops are not considered immovable property. This definition is given under the Transfer Of Property Act, 1882 is not exhaustive and does not give a complete meaning of the term immovable property. It only defined what is not considered as immovable property.
(2) General Clause Act, 1897 – To understand the definition of immovable property, the General Clause Act, 1897 is referred which defines it as – 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.
According to the definitions given under the Transfer of Property Act, 1882 and the General Clause Act, 1897, Immovable Property is something attached to the earth permanently like land and other substances except standing timber, growing crops, or grass.
The term “land” is used in the definition which means a definite portion or piece of earth above, on, or below the surface of the earth. The surface of the earth, the minerals found inside the earth, or the river or land and water bodies on that surface of the earth are considered as land. Apart from the natural features of a part of the surface of the earth, other man-made inventions can also be a part of the land. If a house is built permanently on the surface of the earth, it is considered as immovable property and called land. Substances created through a human agency can also be a part of the land.
Benefits arise from the land
Property is usually claimed and treasured for the benefit of an individual. Immovable property i.e. land also provides various benefits. The benefits acquired from the immovable property are also considered immovable property. For instance, the rent acquired from a property or money or interest gained from the property. Various activities including using the land for physical work, or using the water body on the land for fishing, etc, are considered as immovable property of the land.
Things attached to the earth
Things attached to the earth are considered immovable property. Now the question arises for the classification of things as immovable property that are attached to the earth. Are all the things attached to the earth immovable or are there any exceptions? To answer these question, Section 3 of Transfer of Property Act, 1882 explains immovable property as (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; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
Things that are deep-rooted in the earth like trees, plants, shrubs, etc, are considered immovable property. But this has certain exceptions. If the tree comes under the category of standing timber then it cannot be considered as immovable property. For example, trees which are grown to be cut for commercial purpose as wood and timber are not considered as immovable property. Fruit-bearing trees are a part of immovable property.
For instance, if a tree is beneficial for both wood and timber, like mango, will it be considered as movable or immovable property? This question was answered by the case Shanta Bai Vs State of Bombay, 1958 AIR 532, 1959 SCR 265. It was held that the “real intention” of growing the tree will determine it as moveable or immoveable property. If the tree is grown for fruits, it is considered as immovable property and if it is grown for timber then it is considered as moveable property.
In the case of Marshall Vs Green, it was held that the interest of the contract will determine the tree as moveable property or immovable property. The Contract of sale will be considered in such cases.
Things that are embedded in the earth are also considered immovable property. For instance, the foundation of a house that is embedded in the earth will be considered as immovable property. But not everything which is embedded in the earth is considered immovable property. If a thing is fastened to the surface of the earth to remove it later in the future, then it cannot be called an immovable property. The intention of the work done is necessary for determining a property as moveable or immovable.
Things attached to the embedded property on the surface of the earth are considered immovable property. For instance, the house built above the foundation which is embedded in the surface of the earth is considered immovable property. Although, the real intentions are necessary for this condition as well.
If a moveable property is attached to an immovable property then the real intentions are considered to define the property as moveable or immoveable.
Difference between moveable and immovable property
(1) By definition
Immovable property by definition means anything which is permanently attached to the surface of the earth and cannot be moved is considered as immovable property. For instance, house, land, etc.
Moveable property by definition means anything which can be moved and used for commercial purpose. Any personal property is moveable property and a person can claim their rights on it. For example, tables, chairs, computers, etc.
(2) By Ownership
The ownership and transfer of immovable property is regulated by the Deeds Registries Act and the Sectional Titles Act, while the movable property will be dealt with in terms of our common law.
Moveable property is transferred by contract laws and other common laws, whereas, immovable property ownership is transferred or exchanged by property laws.
Property is an important part of life and is governed by various statutes. It can be divided into two – Moveable Property and Immovable Property. It is used for the transfer and ownership of property and for solving day to day cases. Both Moveable and Immovable properties hold various rights and duties on the part of the owner and the transferer of the property.
This article has been written by Shrungeri Chauhan, BALLB (Hons) student at School of Law, DAVV.
Also Read – Difference Between Gift Deed and Will
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