Report No. 70

Chapter 6

Definition of Immovable Property

Section 3

6.1. Introductory.-

Section 3 contains a definition of the terms "immovable property", "instrument", "attested", "registered", "attached to the earth", "actionable claim" and "notice". The definitions should have been arranged in alphabetical order, which is not the case at present.

6.2. Immovable property.-

Section 3 begins with the meaning of "immovable property". It does not define "immovable property", but only interprets and limits it by excluding from the definition occurring in the General Clauses Act, certain things, namely, "standing timber, growing crops or grass" which would otherwise be included in the category'.

6.3. Real property.-

The term "immovable property" does not occur in English internal law, where the distinction is between real property and personal property. This distinction is not synonymous with immovable and movable property. It is based upon no juristic conception of property, but is associated with an early form of action called actio realis1. The terms "real" and "personal" were originally applied to actions in which a decree for restitution might or might not issue against the thing in suit (in rem).

A successful party in a real action obtained the King's writ commanding the Sheriff to put him in possession of the identical holding in respect of which the action had been brought, whilst personal actions were brought to enforce an obligation imposed on a man personally to make satisfaction for a breach of contract or a wrong, in short, to pay damages2. And, since specific recovery could only be obtained in respect of immovable property, the other suits being only relieved in damages, the distinction between real property and personal property began to be made according to the appropriate reliefs granted in each case.

Now, as freeholds were the only things specifically recoverable at common law, the term "realty" came to be used as denoting the freehold. Thus, a lease for years, however long, was not regarded as real property at all; and even now it is classed as a chattel real. But in India, a reversioner who has a lease in a property, for however long a period it may be, has an interest which arises out of land and so it is immovable property3.

1. Gour.

2. Williams Real Property, 18th Edn., pp. 24, 25.

3. Matilal Raga v. Ishwar Radha Damodar, AIR 1936 Cal 727 (736).

6.3A. Scientific position.-

The law, unlike engineering, deals with rights, and not with things1. In making a classification of property into movable and immovable, the legal system really classifies rights for the particular purpose in hand. It may be noted that the law of one of the early European principalities-the Custom of Artois-considered even houses to be movable, on the ground that an enemy might pull them down2. It is also to be noted that even now, on another man's land, the house is regarded as moveable property3.

1. Cook Logical and Legal Basis of Conflict of Laws, p. 301.

2. Clarence Smith Classification by Site on Conflict of Laws, (1963) 26 Modern Law Review, pp. 16, 22.

3. Clarence Smith Classification by Site on Conflict of Laws, (1963) 26 Modern Law Review 16, 22.

6.4. Subject-matter of ownership classified as movable or immovable not as realty or personality.-

The categories of movable and immovable property could, thus, possibly differ from country to country. Thus a semi-permanent pavilion is classified as movable property in several American States1.

As a matter of internal law, even common law jurisdictions cannot agree whether some kinds of property are movable or immovable2. For example, take the case of the right of a mortgagee. England3 and Ontaio4 consider it to be immovable. New Zealand5 and Australia6 regard it as movable.

It will be of interest to note that even as late as 1834, the question arose whether an equitable mortgage of land in Antique included the slaves on the land as "affixed to the free-hold" by a local Act of 1692 or whether slaves were personality within the reputed ownership of the mortgagor and were available to the unsecured creditor7. Again, it seems obvious at first sight that a building erected for the purposes of an exhibition, which cannot be removed without losing its identity, must be in the same category as normal buildings, yet in some of the American State8 and in Germany9 its owner is deemed to hold an interest in a movable.

1. Cook Logical & Legal Basis of Conflict of Laws, p. 306.

2. Cheshire Private International Law, (1970), p. 269.

3. Hoyles (in re:), (1911) 1 Ch 179.

4. Ritchie (in re:), (1942) 3 DLR 330 (Ontario).

5. Q'Neill (in re:), 1922 NZLR 468.

6. Hague v. Hague, (No. 2) (1965) 114 CLR.

7. Rucker (Ex parte), (1834) 1 Mont & Ayr 480 referred to by Clarance Smith Classification by Site in the Conflict of Laws, (1963) 26 Modern Law Review 16, footnote 2.

8. Cook Logical Basis of Conflict of Laws, p. 306, et seq.

9. Wolff Private International Law, p. 502.

6.5. Tangible physical objects may be classified1 as either 'land' or 'chattels', and as such, 'immovable' or 'movable'. Like all classificatory terms, these develop ambiguities in use, and whether some physical object is to be regarded as part of the 'land' or as a 'chattel' must always be decided in the light of the purpose of the classification. The problem is not merely one of physics: the classification is being made by lawyers for legal purpose- that is, in order to reach useful decisions in particular types of cases. One type of case is concerned with the law of 'fixtures' (between land and chattels).

The decision involves2 in doubtful cases a problem somewhat like that of deciding whether when one sells an automobile, the tyres which, of course are easily detachable, are a 'part' of the automobile. Much depends upon the customary use of terms: in the 1500's it seems that window glass in a house was regarded as not part of the house, and so not part of the 'land'.

Later, as the use of window glasses in houses became customary, the meaning of the word 'house' came to include the glass in the windows. No one of course doubts that when bricks, shingles, and nails for example, have been used in building an ordinary dwelling house, they have become part of the 'land', even though they may easily be physically detached. At the other extreme, we all recognise that cattle horses, threshing machines, etc., are 'chattels' or 'movables' and are not to be regarded as 'improvements' to the 'land'. Between these two classes lies a third which includes objects which are not so easily classified.

That is to say, the members of this class are not, according to prevailing usage, always regarded as part of the 'land', and yet may be, and often are, thought of as so used in connection with the 'land' that they are treated as part of it for many purposes. In spite of this, they are, to quote Professor Bingham3, "not actually merged into the land or some 'improvement' on it in such a way as to prohibit regarding them as separate objects of property." Under this group Bingham puts the key to a house.

1. Cook Immovable Property and the Law of Situs, 52 Harvard Law Review 1246, 1251.

2. Bingham Some Suggestions Concerning the Law of Fixtures, (1907) 7 Columbia Law Review 1.

3. Bingham Some Suggestions Concerning the Law of Fixtures, (1907) 7 Columbia Law Review 1.

6.6. Definition in General Clauses Act and other Acts.-

So much by way of introduction. Let us now compare a few Indian precedents. "Immovable property" is thus defined in the General Clauses Act-

"Immoveable property shall include land, benefits to arise out of land, and things attached to the earth1."

This applies to the Transfer of Property Act also. The expression has been, however, used in varying senses in the different Acts of the Legislature. In the Indian Trustees Act2, for example, it was defined thus: "Immovable property shall extend to and include messages, tenements and hereditaments, corporeal and incorporeal, of every tenure or description, whatever may be the estate or interest therein."

In the Registration Act3, "Immovable property" includes land, buildings, 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." Similar definitions occur in other Acts, where, however, the term has been given more or less different meanings.

Thus, within the meaning of the Limitation Act4, standing crops are immovable property; growing crops and trees are held not to be moveable property5 within the meaning also of the Small Causes Courts Act6, and they are likewise treated as immovable property within the meaning of the Civil Procedure Code and the Provincial Small Causes Courts Act, 18877. All these are, however, expressly declared to be moveable property by this clause8.

1. Section 3(25), General clauses Act, 1897. The same definition occurs in section 2, Act 1 of 1868.

2. Section 2, Trustees Act, 1866 (28 of 1866) Repeal.

3. Act 16 of 1908, section 2(6).

4. Pandah Gazi v. Jennuddi, ILR 4 Cal 665; Nattu Miah v. Nandrani, 8 BLR 509; Tafail Ahmad v. Bailee Madhub Mnkerjee, 24 WR 394.

5. Gopal Chandra v. Ramjan, 5 BLR 194; Hormasji Irani (in re:), ILR 13 Born 87.

6. Act 11 of 1865.

7. Madaya v. Venkata, ILR 11 Mad 193; Cheda Lal v. Mulchand, ILR 14 All 30.

8. Raj Chandra Bose v. Dharmo Chandra Bose, 8 BLR 510.

6.7. Calcutta case-Letters Patent.-

In a Calcutta case1, the combined effect of the two Acts was considered for the purpose of the Letters Patent. According to the General Clauses Act, "immovable property" includes lands, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth, and "movable property" means property of every description except immovable property.

As land or immovable property has not been defined in the Letters Patent, one has, in order to find out whether there has been a transfer of an interest in immovable property, to refer to the Transfer of Property Act. If the definition of "immovable property" in the Transfer of Property Act had been self-sufficient, no other piece of legislation need have been examined. Looking at section 4 of the General Clauses Act, one finds that the definition of "immovable property" in section 3 of that Act will apply to the Transfer of Property Act, which is a Central Act made after 3-1-1868, unless there is anything repugnant in the subject or context.

The following observations then follow in the judgment:-

"The effect therefore is that by virtue of the combined operation of section 2 of the Transfer of Property Act and sections 3 and 4 of the General Clauses Act, 2 "immovable property" includes land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth, but does not include standing timber, growing crops or grass2. So far as the expression "attached to the earth" is concerned, it occurs only in two sections of the Transfer of Property Act, namely, sections 8 and 108, clause (h).

But as a result of the above amalgamation the meaning of the expression "attached to the earth" given in section 3 of the Transfer of Property Act is attracted to all immovable property referred to in the said Act. "Immovable property", therefore, for the purpose of the Transfer of Property Act includes things attached to the earth or things permanently fastened to anything attached to the earth within the meaning of the expression "attached to the earth" given in the Transfer of Property Act.

"So interpreted, the definition of immovable property for the purpose of the Transfer of Property Act becomes almost the same as that given in the Registration Act except that the incidents such as "hereditary allowances, rights to ways, lights, ferries, fisheries" expressly mentioned in the Registration Act are absent in the Transfer of Property Act. But these incidents are probably also brought in by virtue of section 8 of the Transfer of Property Act."

1. Than Chand v. fugal Kishore, AIR 1960 Cal 331 (334, 335) (G.K. Muter, J.).

2. The portion relating to combined effect is underlined for emphasis.

6.8. Incorporeal rights.-

"Immovable property" as defined is not confined to tangible property. It may be generally premised that the term includes all that would be real property according to English Law, and possibly more1; toda giras hak2, being a right to receive an annual payment which attaches to the inamdar into whose hands the village may pass, is an "interest in immovable property", and would fall into that category. Similarly, haq-i-chaharum or liability to pay customary dues is an incident attaching to land and may be enforced against the vendee, unless it is limited to a right available only as against the vendor3. Varshasans or annual allowances, charged on immovable property, are also included within the definition of immovable property4.

1. Futtehsangji v. Desai, 13 BLR 254 (PC); overruling Fattehsangji v. Desai, 4 BHCR 189.

2. A right of levying a cash composition in lieu of other claims, or of plunder, The Collector v. Pestonjee, 1855 BSDA 291; Sumbhoolall v. Collector, 8 MIA 1, cited in Gour.

3. Futtehsangji v. Desai, 13 BLR 254 (PC); overruling Fattehsangji v. Desai, 4 BHCR 189.

4. Keshav v. Vinayak, LLR 23 Born 25.

6.9. Hindu law.-

Certain rights are classified as immovable property in Hindu law. A right to officiate as priest at the funeral ceremonies of Hindus is in the nature of immovable property1. But an allowance, payable periodically, which is not incidental to a hereditary office, is not, unless it is a charge on such property. A hereditary office is regarded as by itself immovable property2-3, and so is a right to worship an ido14. A claim to maintenance is a familiar example of this species of property5. Anibanoha or corody involves generally the idea of a connection with immovable property and ranks with it6. The chance of acquiring a right to light and air is both incapable of valuation and is wholly outside the term7.

1. Krishnabhat v. Napabhat, 6 BHCR 137; Balvantrav v. Purshotam, 9 BHCR 99; Collector of Thana v. Krishnanath, 5 B 322; Appanna v. Nagia, ILR 6 Born 542; Futtehsangji, v. Desai, 13 BLR 254 (PC); Raghoo v. Kassy, ILR 10 Cal 73; Sukhlal v. Bishambhar, ILR 39 All 196.

2. Government of Bombay v. Goswami, 9 BHCR 222 (225); following Bharatsangji v. Navanidharaya, 1 BHCR 186; Fattehsangji v. Desai, 4 BHCR 189; Raiji v. Desai, 4 BHCR 56.

3. Government of Bombay v. Desai, 9 BHCR 228 (PC); Vishnu v. Yeshwantrao, 1895 BPJ 453.

4. Eshan Chander v. Manmohini, ILR 4 Cal 683; following in Jetikar v. Mukunda Bastin, ILR 39 Cal 227 (230).

5. Vishnu Ganesh Joshi v. Yeshvantrao, ILR 21 Born 387.

6. Government of Bombay v. Gosvami, 9 BHCR 222 (226); Krishnaji v. Gajannn, 11 Born LR 352; Government of Bombay v. Kalianrai, 14 MIA 551.

7. Sultan Nawaz Jung v. Rustamji, ILR 20 Born 704; Munappa v. Subramania, ILR 18 Mad 437.

6.9A. Share.-

A share in a registered company is by law declared to be moveable property1. And so, under the Hindu law, Government Promissory Notes are classed as movable property2.

1. Companies Act.

2. Doorga v. Pooreen, 5 WR 141.

6.10. Standing timber.-

The Act excludes standing timber from immovable property. The definition is professedly not one of general application, but is limited only to this Act, from which it follows that the term "standing timber" is not to be classed as movable property for all purposes. It is so regarded under the Provincial Small Causes Courts Act1-2 and the Indian Registration Act3, but it is treated as immovable property for the purpose of the Limitation Act4 and the Code of Civil Procedure, and would be so regarded under the General Clauses Act5-6.

1. Gour.

2. Umed Ram v. Daulat Ram, ILR 5 All 564 (566) (FB).

3. Ram Ghulam v. Manohar Das, 1887 AWN 50; Mongal Sen v. Naoli, QLC 478.

4. (a) Sakharam v. Vishram, ILR 19 Born 207; (b) Madayya v. Venkata, ILR 11 Mad 198; (c) Jaimal Singh v. Ladha, 1884 PR No. 112.

5. Section 3(25), General Clauses Act, 1897.

6. (a) Jaimal Singh v. Ladha, 1884 PR No. 112; (b) Abdullah v. Ashraf Ali, 7 CLJ 152 (166).