Definition of immovable property under Transfer of Property Act, 1882 :

As per Section 3 of Transfer of Property Act,1882, definition of Immovable Property has been given as “It does not include standing timber, growing crops or grass”. It does not say as to what it includes.

As per Section 3 (26) of General Clauses Act, 1897, “Immovable Property shall include land, benefits arising out of land and things attached to the Earth or permanently fastened to anything attached to the Earth”.

1. Land : It refers to Earth’s surface and includes all things which are under, upon and above it. Any such thing will continue to be part of land unless removed. Examples of things included in ‘land’ : Soil, Mud, Flowing water in rivers, Minerals, Underground streams and water, Coalmines, Goldmines.
2. Benefits arising out of land : It is also immovable property. It means the benefits arising from exercise of certain rights over land. Benefits/profit/gain from such right is an intangible property. Examples : Right of way over a land (easement), Right of fishery (i.e. to catch fishes), Right of ferry (i.e. transportation over water with the help of boats etc.)
3. Things attached to the Earth : Section 3 of Transfer of Property Act, 1882 defines this term separately. Under Section 3 of Transfer of Property Act, 1882, it means three things: (a) Rooted in the Earth like trees and shrubs (b) Embedded in the Earth like walls or buildings (c) Attached to what is so embedded like doors.

(a) Things rooted in the Earth : Things like plants, shrubs are rooted in the Earth, keep themselves fixed to the Earth and so are immovable.

Exceptions :

(i) Standing timber (trees whose wood is used for making furniture like doors, windows, table etc. are movable properties. For example : Wood of trees like Neem, Bamboo, Babool, Sheesham etc.)

(ii) Crops and grass (They are only meant to be uprooted and cut in the near future, so they are merely movable. For example : Crops of Wheat, Paddy etc.)

(b) Things embedded in Earth : These are things which are firmly affixed to the Earth after the Earth is dug deep. For example, buildings, houses, walls are all immovable properties. The whole structure is permanently annexed to the Earth. Exception : A road roller embedded in the Earth due to own weight, a heavy stone or an anchor of ship used to stop movements of ship are not immovable but merely movable properties.

(c) Things attached to what is embedded in the Earth : Things like doors, windows, shutters which are attached to what is embedded (For example, walls and houses) are also immovable.

Essentials : (i) They must be permanently attached.

(ii) They must be attached for the beneficial enjoyment of house or building.

CASES on this topic:

1. In Seeni Chettiar v. Santhnathan (1897) 20 Mad 58 (FB) it was held that right to cut grass is a beneficial interest as it is a right exercised upon land.
2. In Shanta Bai v. State of Bombay AIR 1958 SC 532 FACTS: The husband had executed a lease deed in favour of wife, Shantabai (petitioner) to take wood from forest for a period of 12.5 years for some money. the Madhya Pradesh government passed Madhya Pradesh Abolition of Proprietory rights (Estates, Mahals, Alienated lands) Act,1950 which deprived petitioner of her right and vested land in the state. she applied for compensation that she was initially granted and later on permission was revoked for her work on said land. she was stopped when she started cutting trees on her own. HELD: The lease was not for transfer of right to enjoy immovable property but to remove yield and no infringement of article 19(1)(g) of the Indian constitution ( the fundamental right to practice any profession, trade or occupation or business). It is a benefit arising out of land. Petitioner was therefore refused this remedy.