Transfer of Property Act 1882 deals with the transfer of property between living two or more living persons i.e. inter vivos. It particularly deals with provisions regarding the transfer of immovable property between people. For example sale, lease, mortgage, actionable claims, charges, exchange and gifts. It also lays down provisions regarding the transfer of movable property between two or more living persons. This Act does not deal with the transfer of property by the operation of law such as succession, insolvency, inheritance etc. The provisions of this Act relating to the transfer of property apply to transfers on principles of good conscience, equity and justice.
Concept of Land
The term ‘Land’ means and includes soil, buildings, meadows, waters, marches, minerals etc. Land extends indefinitely to anything upwards (like airspace) or downwards (such as minerals found underneath the surface) from the surface of the earth. Any accretion to the surface of the earth whether natural or through human intervention created with an intention to permanently fasten it with the earth will also be defined as immovable property.[i]
The term ‘immovable property’ has not been defined under this Act. However, section 3 of this Act merely lays down the meaning of immovable property. Immovable property means a property which does not include standing timber, growing crops or grass.[ii] Therefore. this meaning is an exclusive definition.
In Babu Lal v. Bhawani Das and Ors[iii] the court held that section 3(25) of the General Clauses Act which defines immovable property can be applied to Transfer of Property Act 1882. Under the General Clauses Act, immovable property is defined as one which includes land, benefits arising out of the land, things attached to the land or things that are permanently fastened to anything that is attached to the earth.
Registration of Land
The term property includes movable and immovable property. The definition of immovable property includes land. In other words immovable property is the genus and land is the species. On transfer of a land, a written deed must be executed between the parties to the transfer. All transfers of land whether it is a sale, mortgage, lease, exchange, gift or actionable claim must be registered and in writing. The sale or mortgage should be of a property of value more than rupees 100. The lease of land should be for a term exceeding one year and reserving a yearly rent. These transfers shall be effected by a registered instrument and must be attested. [iv]
Exclusion of standing timber, growing crops or grass from the term immovable property
In Sukry Kurdepa v. Goondakull,[v] the court explained the meaning of the term movability. It held that “when a thing cannot change its place without injury to the quality of which it is, what it is, it is said to be immovable.” Therefore trees will be immovable as long as they are attached to the earth. When these trees as severed from the earth they become movable property. Standing timber are trees like teak, neem, bamboo etc.which are used for building houses, ships etc When such trees are severed from the earth they can be sold and used for multiple purposes. Trees such as orange trees, mango trees cannot be called as movable as they are grown for enjoying the fruits and not utilizing them as timber. Only those trees which can be utilized as timber are termed as immovable. Growing crops such as wheat, rice, sugarcane etc. are also movable as they are grown to enjoy their final produce. These crops have no value when they are attached to the earth. Similarly, grass can only be used as fodder for animals. They do not have any value when they are attached to the earth.
Benefits to arise out of the land
Under the General Clauses Act, the immovable property includes benefits arising out of the land. Such benefits that arise out the land in the form of rents, dues, fisheries, right to way, lightare regarded as immovable property. In Anand Behra v. State of Orissa[vi] the Court referred to the right to benefit arising out of the immovable property namely lake. The right granted to catch and carry away fish from such a lake was required to be executed through a registered instrument as such a right is regarded as immovable property.
Things attached to the earth
The expression ‘attached to the earth’ includes-
1. Things rooted in the earth
2. Things that are embedded in the earth
3. Things that are attached to what is so embedded
Sub-clause (a) things rooted in the earth includes trees and shrubs, however standing timber trees, crops and grass are excluded from the term immovable property. To determine whether a tree is immovable, the tree that is grown with an intention to enjoy the fruits or flowers will be regarded as immovable as such trees have no independent value. However, if a tree is grown to be utilized for purposes that can be enjoyed only after severance of such trees from the ground, they will be regarded as movable property.
Sub clause (b) things embedded in the earth include buildings, houses, walls etc. These buildings or houses or walls are immovable property even if they demolished or destroyed. The object for which they are constructed is material for determining whether it is an immovable property or not. For example if bricks are piled in a construction site, they will be movable property. However, if such a bricks are piled with and intention of serving as a wall it is immovable property.
Sub clause (c) things attached to what is so embedded for the permanent beneficial enjoyment of that which is so attached like windows, doors, fans etc. are also immovable property.
Additionally the court as held the following as immovable property under the Act.
1. Right of way
2. Right to collect rent
3. A Hindu widow’s life interest in the income of the husband’s property
4. A factory
5. Office of a hereditary priest of the temple
From the above article, one can understand the concept of land under the Act. Immovable property includes land, any benefits arising from the land, things attached to the land or things fastened to what is so attached. Any sort of land or accretion to it will be immovable property as transfer of such a property requires compulsory registration under the Act.
Frequently Asked Questions
What do you mean by land under the Transfer of Property Act?
The General Clauses Act defines the immovable property. It lays down that immovable property includes, land, benefits arising out of the land, things attached to the earth and things permanently fastened to what is so attached. Hence the term ‘land’ includes everything that is present on, above or under the land. It also extends indefinitely to things that are around the land.
Does the term ‘land’ include the sky?
Land expects indefinitely to upwards and downwards. It includes airspace and sky. It also includes the minerals present under the land in the form of minerals or soil.
Does the term ‘land’ include walls, windows, farms, marches?
Land includes any accretion made to it whether its natural or by human agency. Such accretion can be any manmade structures such as walls and windows which are constructed with an intention to be attached to the land permanently. Land even includes natural structures like marches or farms or grasslands.
Edited by Sakshi Agarwal
Approved & Published – Sakshi Raje
[i]The Free Dictionary by Farlex
[ii] Transfer of Property Act; section 3
[iii] (1912 ) 15 IndCas 32
[v] (1872) 6 Mad 71
[vi] AIR 1956 SC 17