IMMOVABLE PROPERTY:STANDING

TIMBER, GROWING CROPS,GRASS

Submitted by – Vivek kumar Submitted to – Dr. P.K.V. Sita

Rama rao
Roll no – 1575, Faculty of Property law
rd
3 semester, BA.LLB.(Hons.)

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF COURSE TITLED TRANSFER OF

PROPERTY ACTF FOR COMPLETION OF BA.LLB. (HONS.)

OCTOBER 2017

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR,
PATNA (BIHAR)
 TABLE OF CONTENT

ACKNOWLEDGEMENT……………………………………………………………..

RESEARCH METHODOLOGY……………………………………………………………..

1 INTRODUCTION……………………………………………………….

2 TYPES OF IMMOVABLE PROPERTY…………………………………………

3 EXCEPTION TO IMMOVABLE PROPERTY ……………………………..

4 EFFECT OF REGISTRATION……………………………………..

5 CONCLUSION AND SUGGESTION…………………………………………..

BIBLIOGRAPHY …………………….
 ACKNOWLEDGEMENT

I would like to thank my faculty Dr.P.K.V. Sita Rama Rao , whose assignment of such a relevant
and current topic made me work towards knowing the subject with a greater interest and
enthusiasm and moreover he guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
sources of research materials throughout the project and without whom I couldn‟t have
completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project
Hypothesis –

Exception to immovable property are good as far as for smooth functioning of day to day
transaction.

1. Research Methodology –

The researcher will use doctrinal method of research. The doctrinal sources for this research
paper are books, websites, journals, articles written by many authors, along with online research.

1.1. Sources of data collection –

The researcher will be using primary as well as secondary sources of data collection for
collecting the data regarding this project.

1.2. Limitation –

This research project has certain limitations i.e. Time and monetary limitations, as the research
has to be done in prescribed time.
 1.3 SCOPE OF STUDY

As the topic is very interesting and fundamental topic of property law , so it will be very useful
for the readers to understand exception to immovable property and immovable property as a
topic.

INTRODUCTION

Section 3. Interpretation clause.—

In this Act, unless there is something repugnant in the subject or context,—

“immoveable property” does not include standing timber, growing crops or grass1

„„instrument” means a non-testamentary instrument;

1[“attested”, in relation to an instrument, means and shall be deemed always to have meant
attested by two or more.

“registered” means registered in 2[3[any part of the territories] to which this Act extends] under
the law4 for the. time being in force regulating the registration of documents.

“attached to the earth” means—

(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

1 th
R. K. Sinha, The Transfer of Property Act, ( Central Law Agency ed, 18 edn).
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is
attached;

5[“actionable claim” means a claim to any debt, other than a debt secured by mortgage of
immoveable property or by hypothecation or pledge of moveable property, or to any beneficial
interest in moveable property not in the possession, either actual or constructive, of the claimant,
which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial
interest be existent, accruing, conditional or contingent;]

6[“a person is said to have notice” of a fact when he actually knows that fact, or when, but for
willful abstention from an enquiry or search which he ought to have made, or gross negligence,
he would have known it.

Explanation I.—Where any transaction relating to immoveable property is required by law to be

and has been

effected by a registered instrument, any person acquiring such property or any part of, or share or
interest in, such property shall be deemed to have notice of such instrument as from the date of
registration or, where the property is not all situated in one sub-district, or where the registered
instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act,
1908 (16 of 1908), from the earliest date on which any memorandum of such registered
instrument has been filed by any Sub-Registrar within whose sub-district any part of the property
which is being acquired, or of the property wherein a share or interest is being acquired, is
situated.

Provided that—
(1) the instrument has been registered and its registration completed in the manner prescribed by
the Indian.

Registration Act, 1908 (16 of 1908), and the rules made there under,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books
kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly
entered in the indexes kept under section 55 of that Act.

Explanation II.—Any person acquiring any immovable property or any share or interest in any
such property shall be deemed to have notice of the title, if any, of any person who is for the time
being in actual possession thereof.

Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires
notice thereof whilst

In section 3 of Transfer Of Property Act defines immovable property but the definition is neither
clear nor complete, it simply says that immovable property excludes standing timber, growing
crops or grass. According to section 4 of general clause act 1897, immovable property includes
land, benefits to arise out of land,2 things attached to earth this definition given in the general
clause act is applicable to the transfer of property act but this definition is also not complete and
therefore we refer to section 3 of transfer of property act . Where things attached to earth means
things embedded in the earth , things attached to what is embedded in earth except standing
timber, growing crops, or grass thus we see that these things are exception to immovable
property definition.

2
Ibid.
The definition of immovable property given in the general clause act is applicable to the transfer
of property act.3 But this definition is also not complete. Moreover, the expression things
attached to earth which is not defined in the general clause act has been defined separately in
section 3 of the transfer of property act. Thus in order to get a clear and complete meaning of
immovable property , it is necessary to consider the definition given in general clause act.

TYPES OF IMMOVABLE PROPERTY

The term „property‟ has not been defined in the Act. When Section 6 of the Act says „property of
any kind‟ it implies every possible interest or right that can be possessed and is a subject of
ownership. It can be tangible or intangible. It can be a physical object or something abstract.
Property of different kinds is dealt with differently. The movable property is dealt with under the
Sales of Goods Act, 1930 while the major chunk of the Transfer of Property Act, 1882 deals with

3
Babulal v. Bhawani, (1912) ALJ 776.
immovable property. Section 3 of the Transfer of the Property Act, 1882 is called the
Interpretation clause for it explains the following terms.

DEFINITION OF IMMOVABLE PROPERTY

Immovable property is a species of property. Whenever we speak about immovable property, we
always use the ready reference of „attached to the earth‟. Whether a thing is permanently
attached to the earth, whether it is capable of separation or not and what is the intention behind
the construction or promoted growth of the property are a few of the points that need to be
looked into.
The definition of immovable property as per the Transfer of Property Act is a negative definition.
The Section 3 reads that “immovable property” does not include standing timber, growing crops
or grass”. Standing timber refers to trees that are fit for usage in building or repairs. Growing
crop includes all such vegetables, etc that are solely grown only for their produce. Grass is
referred to as fodder.
Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an exhaustive definition. It says
that “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.” It specifies the following as
immovable property.

a)LAND. It encompasses the upper as well as the lower surface of the earth. Any interest in the
same will be treated as that of immovable property. It would include wells, streams etc.

b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing with
rights and interests in land as defined above. Right to collect rent or zamindari rights are two
examples. Shanthabai v State of Bombay 4benefit arising out of land, was held to be immovable
property.

c) THINGS ATTACHED TO EARTH. The nature of attachment is important.

This clause is explained with reference to the following three points:

4
AIR 1958 SC 532: (1959) SCR 265.
a)Things rooted in the earth like trees, shrubs but not including standing timber, growing crops
and grass. Jamuna trees are treated as immovable properties.
b) Things embedded in the earth like buildings, minerals etc. By „embedded‟ we refer to things
that have their foundations laid well below the surface of the earth. An anchor of a ship is not
immovable property in its normal usage.
c) Things that have been permanently fastened to anything embedded in the earth for the purpose
of permanent enjoyment. For example, ceiling fans, doors and windows. 5If the objects that have
been attached are merely transitory or not permanent and do not contribute to the value and
purpose of the thing attached to, they are not immovable properties.
To determine whether a fixture is permanent or not, the following points need to be considered:
a) Mode of Annexation: Temporary, standing on its own weight or dug in to the earth, etc.
b) Purpose or Object of Annexation:
Trade fixtures are to be treated in association with the business and not the land as the fixtures
are attached in connection with the business. Such fixtures are to be treated as accessory to the
business and not as annexation. The position is different if the person attaching the fixtures in a
business place is the owner himself. When it is a machinery in the factory, the court has to see
the object and purpose of such installation.6 The beneficial enjoyment of the machinery itself, the
degree and the manner of attachment or annexation on to the earth are other points for
consideration. Bamdev Panigrahi vs Monorama Raj7 the court held that machinery are not held
as immovable propert.
The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical aspects of
property in the definition present in the said Act. The definition under the Act is as follows,
“Immovable Property includes land, buildings, hereditary allowances, rights of ways, lights,
ferries, fisheries or any other benefit arising out of land and things attached to the earth but not
standing timber, standing crops or grass.”
All the definitions read together can give us a clear idea what is included or excluded from being
an immovable property. They do not define immovable property per Se. A clear idea can be
obtained by creating a common definition by mixing these three. Immovable Property means

5
Available at ttps://www.legalbites.in/law-notes-property-law-definitions-immovable-property (visited on 6th oct.
2017).
6 th
G.P.Triphati, Transfer of Propert Act, ( Central law Agency ed, 15 edn) (2005).
7
AIR 1974 AP 226.
lands, benefits arising of the lands and the things attached to the earth or permanently fastened to
anything attached to the earth. Other than the physical aspect, every benefit arising from and
every interest in the property is also included in the definition. It excludes three things, namely,
standing timber, growing crops and grass.

EXCEPTIONS OF IMMOVABLE PROPERTY

Whether a tree is timber or not depends on the category of the tree and the common purpose of
such category. All the statutory definitions have excluded standing timber, growing crops and
grass from the purview of an immovable property. Here the intention is of great importance. If
the transaction is the immediate, the objects will be movable. But if the contract regarding such
objects extends to many a year or if the owner of the trees is interested in further vegetative
growth, then they will be treated as immovable property. The transfer of trees standing on land
does not amount to the transfer of the land also.

For example, mangoes are treated as movable property for the intention is to pluck them
seasonally and sell them. On the other hand, when a person has a right to fish from a particular
lake, it is a benefit arising of an immovable property, namely, the lake. Hence, it will be an
immovable property
.
3.MARSHALL vs. GREEN8 — It was held that if only a right to cut and enjoy the tress as
timber was sold, it is an interest in a movable property. If such a right is to extend over many
years, it will be treated as an interest in immovable property.
The real test if whether a property is immovable or immovable is the intention behind the
transfer and the transferability of the property. For example, generally a mango tree will be
treated as an immovable property but it will be treated as movable property if it is to be cut and
used to build a house.

STANDING TIMBER-standing timber is a movable property. A green tree rooted in the earth
is called standing timber provided its wood are generally used for timber purpose that is for
making house or household furniture. If there is a tree, the woods of which are fit for making
doors, windows or furniture, the same tree which under general rule is an immovable property
shall be treated as standing timber and as such a movable property. For example, the woods of
neem, sheesam, babool etc…9 Fruit bearing trees are not standing timber. They are grown and
planted for takin fruit and not for wood therefore immovable property.10

GROWING CROPS AND GRASS- Growing crops and growing grass are movable
properties11. Growing crops means crops standing in the field, although the crops, say of wheat
and barley are nothing but collection of plants rooted in the earth but still they are not considerd
as immovable property because they are bound to be cut in near future and are rooted in the earth
for temporary basis.

8
942 F.2d 539 (1991).
9 th
R. K. Sinha, The Transfer of Property Act, ( Central Law Agency ed, 18 edn).
10
Moti Singh v. Deoki Singh, AIR 1936 Pat. 46.
11 th
R. K. Sinha, The Transfer of Property Act, ( Central Law Agency ed, 18 edn).
 EFFECT OF REGISTRATION

Registration is a process through which a document is officially recorded. It takes place under
the provision of the Indian registration act, 1908. When a document is registered , it becomes an
important and valuable evidence regarding the statement made in the document. Under the
Transfer of Pr operty Act, certain transfer must be made only through a registered deed. For
example, gift of an immovable property of any valuation, sale of immovable property above
rupees one hundred , simple mortgage etc. can be made only through a document duly attested
and registered. In other words the deeds of such transfer are compulsorily registerable . Section
17 of the Registration act provides a list of document which are compulsorily made regisetrable.
On the other hand there are certain documents dealt with under section 18 of the registration act
where registration is optional , e. g. Wills, Sale of immovable property of value less than 100
rupees etc. Where a document is necessary to be registered but has not been registered the
transfer is not valid and the transfer are not recognised by courts .Briefly stated the procedure of
registration of a document is as under. The transfer which is to be made through a deed is first of
all written on the stamp papers of prescribed value. Thereafter the executant puts his signature
and two attesting witness attest the execution , this document which is duly attested registered is
presented before the sub- registrar or officer having appropriate authority and sub registrar after
taking the thumb impression of the person admits the deed for registration. The registration fee
whatever is applicable to the transfer is also paid and can be paid by any of the person either the
transferor or the transfere . The person who is interested in the property can get all the
information regarding the property of past 30 years after visiting the registrar office and seeing
the register office by paying just a nominal fee of 10 rupees and hence it is adviced to people to
visit the registrar office before buying any property or even in the case of mortgage. It may be
noted that deed is deemed to be registered on the date on which is mentioned by the sub-
registrar under his certificate . It may also be noted that the registration must have been
completed in all respect strictly according to the provision of Indian registration act.
 CONCLUSION AND SUGGESTION

After seeing all these various definition of immovable property we can say that there is a great
difference between movable and immovable property and there are rules for registration being
compulsory in the case of immovable property and not being made compulsory in the case of
movable property these rules are made for the smooth and uniterruptted functioning of the
society without causing a great hindrance to it. Movable property on one hand can be transferred
from one place to another. Registration is optional as per the Indian Registration Act, 1908. The
Sales and Central Sales taxes are applied, and immovable property on the other hand cannot be
transferred without causing extensive damage to the property. The damage relates to the nature
of the property Registration is compulsory under the Indian Registration Act, 1908 if the value of
the property is more than Rs. 100. The property needs to be registered at the Sub-Registrar‟s
office. The appropriate stamp duty and the registration fee have to be paid. There are many
things which are thought of as immovable property but in law is treated as movable property and
vice versa is the case here are few things which is treated as immovable property but are thought
of as movable property by an ordinary person they are a right to collect rent from an immovable
property, a right to receive future rents and profits of land, a tenancy right etc .And there are few
things which are thought of as immovable property but in law is treated as movable property A
right to worship, a copyright, the interest of a partner in a partnership firm, a right to get
maintenance etc.

Since immovable property are generally considerd to be more costly than the movable property
that is why rules provided in the transfer of property act is quite good enough and the hypothesis
of the researcher stands proved that the exceptions made in the immovable property are good as
if the standing timber and growing crops would have been included in the category of
immovable property than it would have been very difficult for the ordinary person to perform the
ordinary day to day transaction as it would have required registration and every day almost
every person would have runned to the sub registrar office as there is requirements for
registration in the case of transfer of immovable property and there would have been a chaos in
the society and registrar office would have looked like fish market without any task being
performed , but on one hand these exceptions are very good for the society at large but on the
other hand without any clear and complex free definition immovable property is left to be
decided by the courts and the clever lawyers take benefit of these loopholes and take advantage
the law makers should try to cut these loopholes by giving this task to law commission to come
up with a clear cut definition of immovable property and then including it into the statute book.
 BIBLOGRAPHY

Primary sources

BOOKS REFERRED

1 Transfer of property act, R.K. Sinha , 18th edition, 2017.

2 Transfer of property act, G.P. Triphati, 15th edition, 2005.
3 Transfer of property act , bare act.

SECONDARY SOURCE

WEBSITE VISITED

1 www.legalservicesindia.com.
2 www.legalservicesindia.com.