Section 3 of The Transfer of Property Act, 1882.
The distinction between movable and immovable property was explained by Holloway, J., in an old Madras case as follows: “Movability may be defined to be a capacity in a thing of suffering alteration of the relation of place. Immovability being the incapacity for such alteration. If, however, a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable. Certain things such as a piece of land are in all circumstances immovable. Others such as trees attached to the ground are, so long as they are so attached, immovable; when the severance has been effected they become movable.”
The definition of “immovable property” in the General Clauses Act is not exhaustive. That definition is as follows : “Immovable property shall include land benefits to arise out of land, and things attached to the earth.”
The Transfer of Property Act defines the phrase “attached to the earth” but gives no definition of immovable property beyond excluding standing timber, growing crops and grass. These are no doubt excluded because they are only useful as timber, corn and fodder after they are severed from the land. Before they are so severed they pass on transfer of the land under sec. 8 as things attached to the earth.
A “benefit to arise out of land” is an interest in land and therefore immovable property. The first Indian Law Commissioners in their report of l879 said that they had “abstained from the almost impracticable task of defining the various kinds of interests in immovable things which are considered immovable property.” The Registration Act, however, expressly includes as immovable property benefits to arise out of land, hereditary allowances, right of way, lights, ferries and fisheries. The definition of immovable property in the General Clause Act applies to this Act, following have been held to be immovable property: an annual allowance charged on land, a right to collect dues at a fair held on a plot of land; a hat or market; a right to possession and management of saranjam; a malikana; a right to collect rent or jana; a life interest in the income of immovable property; a right of way; a ferry; and a fishery. On the other hand a royalty is not immovable property; nor a right to recover maintenance though charged on land; nor the right of a purchaser to have the land purchased registered in his name.
With reference to the Limitation Act the Privy Council said that the words immovable property were used as something less technical than “ real, ” and included all that would be real property under English law and possibly more, and that if the nature and quality of the property can only be determined by Hindu law and usage, the Hindu law may properly be invoked for the purpose. Accordingly an inamdar’s right to an annual payment from a village is immovable property. For the same reason a priest's right to recover dues at a funeral; a right granted by the Peshwas to levy toll on exports of grain; and a right of assessment have been held to be immovable property. On the other hand a turn of worship is movable property. A yajman vritti though treated as immovable property is not immovable property in the proper sense of the word and the assignment of a right to collect offerings from yajmans for a period of years is not a lease. A vested remainder is immovable property.
An equity of redemption is immovable property, and so is the mortgagee's interest in the immovable property mortgaged. There are many conflicting decisions as to whether a mortgage debt is immovable property, but since a mortgage debt hat been excluded from the definition of an actionable claim by Act 2 of 1900, it seems that a mortgage debt is to all intents and purposes immovable property, though for the purposes of attachment it is treated as movable property. A Full Bench of the Rangoon High Court has said that a mortgage, being a transfer of an interest in immovable property, is immovable property and that a suit to enforce a mortgage is a suit for land under the Letters Patent of the Chartered High Courts.
The phrase “ attached to the earth ” occurs in the definition of immovable property in the General Clauses Act, and also in this Act in section 8 with reference to the legal incidents of immovable property which pass, without express mention, on transfer; and again in section 108 with reference to things a leasee may remove. The present section (s. 3) defines the expression “ attached to the earth ” as including
The English law as to fixtures is based on the maxim quicquid plantatur solo, solo cedit as to trees, and quicquid inaedificatur solo, solo cedit as to buildings, and the application of these maxims is varied by a mass of exceptions in favour of a tenant and in a favour of trade fixtures. The term fixture has no precise meaning in English law and is not found in Termes de la Ley, but it is generally applied to something annexed to the freehold. The classification as immovable property of things attached to the earth bears some analogy to the English law of fixtures, but the maxims on which the English law is founded do not generally apply in India. In Paramanick's case the Calcutta High Court held that:
“ We think it should be laid down as a general rule that, if he who made the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil; the option of taking the building or allowing the removal of the material remaining with the owner of the land in those cases in which the, building is not taken down by the builder during the continuance of any estate he may possess.”
The Mohammedan law is the same. The Indian Legislature has departed from the English law of fixtures in sec. 2 of the Mesne Profits and Improvements Act, II of 1865, corresponding to sec. 51 of this Act, and again in sec. 108 (h) of this Act dealing with the lessee's right to remove fixtures. The Act inclines rather to the law as recognized by Hindu and Mohammedan jurisprudence.
Trees and shrubs are immovable property according to the definition in the General Clauses Act, but this definition is subject to the exception made in this Act as to standing timber. In Rustomjee Eduljee Shet v. Collector of Thana, the Judicial Committee said that the trees upon the land were part of the land and that the right to cut down and sell those trees was incident to the proprietorship of the land. Trees growing out of a garden wall belong to the owner of the garden. A mortgage with possession of a fruit bearing tree with the intention that the mortgagee is to enjoy the fruit but not fell the tree is a mortgage of immovable property.
Trees and shrubs may be sold apart from the land, to be out and removed as wood, and in that case they are movable property. But if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property. But the fact that a permit to fell trees extends over a period of several years does, not necessarily imply that the transferee is to enjoy the benefit of further growth, and a permit to fell and remove trees for four years has been held to be a grant of movable property. A right to collect lac from trees has been held to be immovable property.
In English law an unconditional sale of growing trees to be out by the purchaser, has been held to be a sale of an interest in land; but not so if it is stipulated that they are to be removed as soon as possible. In Morgan v. Russell an agreement to sell all the slag and cinder forming part of the soil on certain premises was held to be a contract to grant an interest in land. This was followed in a Madras case where an agreement under which the plaintiff was given the right to remove soil and earth from the defendant’s land, and was to level the plots after removal was held to be an agreement for sale of an interest in land.
A house being imbedded in the earth is immovable property and this is so even if it is sold for enjoyment as a house with an option to pull it down. In English law it has been said that the general rule is that whatever is annexed to the freehold becomes part of the realty under the maxim quicquid plantatur solo, solo cedit. This maxim does not apply in India; nevertheless the question whether a chattel is imbedded in the earth so as to become immovable property is decided by the same principles as those which determine what constitutes an annexation to the land in English law, This is a question which it is often difficult to determine. The classic instance is an anchor which may be imbedded in the land temporarily to hold a ship or permanently to support a suspension bridge. In Holland v. Hodgson Blackburn J., said:
“ There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land; but it is very difficult if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land than by its own weight it is generally to be considered a mere chattel. But even in such a case if the intention is apparent to make the articles part of the land, they do become part of the land. Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones if deposited in a builders' yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand an article may be very firmly fixed to the land, and yet the circumstances may be such as to show it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed to the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the ship owner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended, lying on those who assert they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. ”
The two tests therefore are:
In Wake v. Hall, Lord Blackburn said: “ the degree and nature of the annexation is an important element for consideration; for where a chattel is so annexed that it cannot be removed without great damage to the land it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land and as Lord Hardwicke said in Lawton v. Lawton. You shall not destroy the principal thing by taking away the accessory to it.” Thus looms attached to the floor and beams of a mill, or tip up seats fastened to the floor of a cinema, or advertisement hoardings firmly imbedded in the earth have been held to be part of the land.
The object of annexation is the more important consideration. This is a question of fact to be determined by the circumstances in each case, an important element being the nature of the interest in the land possessed by the person who causes the annexation. Thus if a tenant for years or a tenant for life fixes tapestry to a wall, it may readily be inferred that he did not intend them to become fixtures though the circumstances may show that he did so intend. Such an intention is more readily inferred in the case of a tenant in fee simple. Articles which may be removed without structural damage and even articles merely resting by their own weight are fixtures if they are added with the intention of permanently improving the premises. Thus in Monte v. Barnes the tenant in fee simple of a house subject to a mortgage removed fixed grates from the various rooms of a house and substituted heavy “ dog grates ” and it was held that he did so with the object of improving the house, and that they were fixtures which passed to the mortgagee. So a gas engine fastened by bolts and nuts to a concrete floor by a tenant in fee simple subject to mortgage, and looms in a mill fastened to beams and machinery fastened by bolts and nuts to concrete beds have been held to be fixtures belonging to a mortgagee. Looms in a mill fastened to the floor pass under an assignment of fixed machinery.
The same two tests as to mode of annexation and object of annexation have been applied in India. In a case under the Registration Act, Jenkins, C. J., held that machinery was not immovable property as it had been erected by a monthly tenant. Greater stress is however laid on the mode of annexation for in Chatturbhuj v. Bennett the court said that anything to be a fixture must be attached to the earth as that expression is defined in s. 3 of the Transfer of Property Act.
With a view to encourage trade there has been in English a relaxation of the rules with reference to trade fixtures. These are regarded as accessory to the business and not as an annexation to the premises.
The existence of a hire purchase agreement does not affect the question of the intention of the annexation. This has been decided in cases where the contest was between the mortgagee of the premises and the person who had hired the machine to the mortgagor.
Illustration: A gas engine was let out on the hire purchase system under an agreement in writing which provided that it should not become the property of the hirer until the payment of all the instalments, and should be removable by the owner on the failure of the hirer to pay any instalment. The engine was affixed to the land of the hirer by bolts and screws to prevent it from rocking, and was used by him for the purposes of his trade. Default having been made in the payment of the instalments, the engine was claimed by the owner, and also by a mortgagee of the land, who took his mortgage after the hiring agreement and without notice of it, and had entered into possession while the engine was still on the land. It was held that the engine was sufficiently annexed to the land to become a fixture, and that any intention to be inferred from the terms of the hiring agreement that it should remain a chattel did not prevent it from becoming a fixture; and consequently that it passed to the mortgagee as part of the freehold.1)
The attachment must be as the section says for the permanent beneficial enjoyment of that to which it is attached. Thus the doors, windows and shutters of a house are attached to the house, which is imbedded in the earth, for the beneficial enjoyment of the house. They form part of the house and have no separate existence. So also with the movable parts of fixed machinery. But if the attachment is not intended to be permanent, the articles attached do not form part of the house, e.g., window blinds and sashes, and ornamental articles such as pier glasses and tapestry fixed by a tenant for life.
A curious case is reported in the Solicitors Journal, where a hired machine which rested by its own weight on the floor was driven by an engine which was a fixture imbedded in the earth. The machine could be lifted and bodily taken away but it was claimed that it was a fixture because it was attached to the engine. Eve, J., however repelled this contention and said:
“ With regard to the indirect attachment to the motive power, if I were to hold that that constituted a fixture, then every motive power would he a connection which would change a chattel into a fixture. ”
The same conclusion would be arrived at under this section, for the machine is not attached for the beneficial enjoyment of the engine and it is the engine that is subordinate to the machine. If a thing is embedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of the immovable property. If the attachment is merely for the beneficial enjoyment of the chattel itself, then it remains a chattel, even though fixed for the time being so that it may be enjoyed. The question in each case is to be decided according to the circumstances. In one case an oil engine as part of a cinema on the premises leased was held not to be immovable property.
The machinery of a cotton baling press which was placed in a building to shelter it from the weather is movable property, for though the building is embedded in the earth the machinery was not put there for the beneficial enjoyment of the building.
There is no definition in the Act of movable property, but movable property has been defined in the General Clauses Act to mean “property of every description except immovable property..” Standing timber, growing crops and grass are excluded from the definition of immovable property in this Act and are included in the definition of movable property in the Indian Registration.
Standing timber are trees fit for use for building or repairing houses. This is an exception to the general rule that growing trees are immovable property. A fruit bearing tree would not be standing timber and would be classed as immovable property; but the benefit of an agreement for the felling of trees to be converted into charcoal would be movable property. A mango tree is immovable property unless according to the custom of the locality it is used for building in which case it would be standing timber. A mahua tree is not standing timber nor palm or date-trees used for the purpose of drawing toddy. A neem or shisham is standing timber and is not immovable property. A babul tree is timber.
These are not limited to annual crops or emblements as they are called in English law. Growing crops have been held to include all vegetable growths which have no existence apart from their produce such as pan leaves and sugar-cane.
Grass is movable property, but it would appear that a right to cut grass would be an interest in land and therefore immovable property. A sale of growing grass to be mown and made into hay by the purchaser has been held in English law to be an interest in land, but not so if the vendor has to cut the grass and deliver it to the purchaser. The definition does not make this distinction. In a Madras Full Bench case Collins, C.J., said: “ It has long been settled that an agreement for the sale and purchase of growing grass, growing timber or underwood, or growing fruit, not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser, is a contract for the sale of an interest in land. ”