A Detailed Study In Immovable Property

immovable property
  • Any Property that cannot be moved from one place to another, is immovable property.
  • It has rights of ownership attached to it.
  • In the sense used, commonly refers to real estate (such as your house, factory, manufacturing plant, etc.) while movable property refers to movable assets (such as your computer, jewelry, vehicles, etc.)
  • The Movable Properties are those movable properties of every description of the property.
  • The property which can be transferred from one place to another is movable property. Also, all objects placed by the human agency on or under the surface with the intention of permanent annexation to the earth of the property, e.g. Buildings, walls, fences.
  • Section 2(6) of the Indian Registration Act which provides “ Immovable property “ includes lands, buildings. Under the General Clauses Act, all trees would be immovable, as they are attached to the earth.
  • The trees being attached to the earth are rooted in it and, as such, derive their nourishment from it. 
  • In real estate law, this property has certain rights of ownership that go with ( full or partial ) to that property.
  • There may include rights to buildings, rights to collect rent, inherited rights, rights of ways, ferries, or fisheries. It is generally connected to the ground or land on which it sits.
  • They are, therefore, treated as part and parcel of immovable under the General Clauses Act.
  • It generally does not include such things as grass, crops, or standing timber.

A Brief Of Historical Background Of Immovable Property

  • The Britishers were responsible for introducing the Transfer of Property Act, 1882 in India. Before this property act, Subsedars and Zamindars of the villages were responsible for laying down all the property-related guidelines.
  • This act specified statutes for the transfer of property and focused on improving the social and economic aspects of the property.
  • It is not transferable in absence of a will, gift deed, or partition and simultaneous registration of the property in the beneficiary name.
  • Under section 122 of the Act, one can transfer property through a registered gift deed.
  • The immovable property is transferred voluntarily without any consideration.
  • The relinquishment deed cannot be executed for another person who is not a legal heir.
  • Under section 7 of the Transfer of Property Act ( TOPA ).
  • Entitled to legally transfer a property, an individual must be competent.
  • The person willing to make the transfer should be the legal age and mentally stable.
  • Must be registered under the Registration Act, 1908, if its value exceeds Rs.100.
  • Subjected to Stamp duty according to the Indian Stamp Act, 1899 In terms of rule 18(1)(ii) of the CCS ( conduct ) rules, 1964, Government servants are required to submit annual property return ( IPR ) giving full particulars of their immovable, inherited or held on lease or mortgage, either in their own name or in the name of any member of their family or in the name.

Legal Reference For Immovable Property

  • The term immovable is defined in two other Indian enactments i.e., The General Clause Act and The Registration Act.
  • The definition of “ Immovable Property “ in the General Clause Act is as follows According To Section 3 Of Transfer Of Property Act – 1882. ( General Clauses Act ).
  • Things not included in the immovable property are as below,
  • Stand Timber: The words “ Standing Timber “ include the Babool Tree, Shieham, Neem, Pipal, Banyan, Teak, Bamboo, etc.,
  • Growing Crops: The term includes the creepers like Pan Angoor Creepers, the various vegetables like Louki, Kaddoo, etc and the sugarcane, Wheat, Barely, etc.,
  • Grass: Grass can only be used as fodders.

According To Section 3, Subdivision (25) Of Transfer Of Property Act ( General Clauses Act )

Things included in the immovable property are as below

  • Land
  • Benefits arise out of Land
  • Things attached to the Earth
  • Things permanently pasted to anything attached to the earth ( ex..doors and windows in a building,…etc )

According To The Registration Act

The Registration Act combined Section 3 and subdivision 25 of the Transfer of Property Act, and the immovable property are listed as below:

  • All objects either on or under the surface of the land area are in their natural state.
  • All objects are placed by the human agency either on or under the surface with an intention of permanent annexation

Benefits arising out of the land ( Both tangible and intangible ).

  • The tangible are the things visible to the eye like land, water, and fishes…..like that. The Intangible are the benefits which are invisible to the eye.

Things attached to the earth

  • Things rooted to earth – Trees and Shrubs
  • Things embedded in the earth – ( Wall and Buildings )
  • Things attached to What is embedded in the permanent beneficial enjoyable to which is attached.

The things which are embedded in earth should stand on their weight

  • The degree and Mold of Annexation will be taken into account.
  • The buildings with strong foundations are considered noc for immovable and at the same time, the huts constructed with feeble structures will be considered as movable property.
  • The object of Annexation also will be taken into account.
  • The purpose of annexation, a well may be formed water storage purpose, a small shed may be constructed on the leased land for 5 years. These two will be considered as renting of immovable property under GST.
  • Whereas the Big machinery used for some machining purposes will be considered as movable and immovable property.

A Detailed Description About Immovable Properties Land

  • It includes the earth’s surface (may be covered with water), a determinate portion of the earth’s surface.
  • The column of space above the surface. The ground beneath the surface. Thus, all objects which are on or under the surface in their natural state ( ..i.e., minerals ) are included.
  • It also includes Lakes, Ponds, and rivers within its boundary. They are called land covered by water. On or and, so are the objects placed by the human agency with the intentions of permanent annexation ( eg.. buildings, walls, and fences ).

Benefits To Arise Out Of Land

  • Rights to collect rents, profits, fair, etc, rent collect, debt secured by mortgages, office of hereditary priest of the temple, Hindu widow’s life interest of income tax of husband’s property, etc.,
  • Right to collect rent – For all the immovable properties owned by a person, he/she is liable to collect rent after giving it on lease to a third party.
  • Right to collect dues – If the third party leasing the property is cultivating on it or earning any kind of money through it, the owner of the tds on sale of immovable property is legally allowed to collect the dues.
  • Right of way – Land for sale can be classified under public or private categories and trespassing them can lead to litigation.
  • Right of fishery or factory – If the property includes a factory or a water body that acts as a fishing spot, the owner can reserve rights to those benefits.
  • Any property that falls under the category of real estate. This includes constructions like a manufacturing plant, land, residential house, commercial building, factory, hereditary allowances, and more.

Things Attached To Earth

  • Things that are firmly fixed in the earth and become a part of the land are things embedded in the earth, for example, houses, buildings, walls, electricity poles, etc.,
  • Things which are not intended to make them part are not, for example, anchor embedded in the land to hold a ship, road-roller, machinery, etc.,
  • Where a thing is attached to something which is embedded in the earth for its permanent beneficial enjoyment, the thing so attached would also become immovable property, for example, doors, windows, or shutters of a house.
  • However, there are certain things that are embedded in the earth yet they are not immovable as for example, an anchor embedded in the land to hold a ship.

Everything, therefore, depends upon the circumstances of each case and mainly on two circumstances as indicating the intention :

  • The degree or mode of annexation. For example, tip-up seats fastened to the floors of cinema halls are immovable property.
  • The object of the Annexation, for example, blocks of stone placed one on top of another without any cement for the purpose of forming a drystone wall, will become part of the land, but not the stones deposited in a builder’s yard and for convenience sake stacked on top of each other in the form of a wall.
  • However, it may be noted that things attached must be (a) attached permanently and must (b) attached for the beneficial enjoyment of the house or building.
  • Things attached without any intention of making them a part of the house or building would not be immovable, for example, electric bulbs, window-screen are movable.

However, it may be noted that thing attached must be

  • Attached permanently.
  • Attached for the beneficial enjoyment of the house or building.
  • Things attached without any intention of making them a part of the house or building would not be immovable property, for example, electric bulbs, window-screens are movable.
  • Section 3 of TPA defines the expression “ Attached to the Earth “ as including.
  • Things rooted in the earth – Trees, plants, or shrubs that grow on land rooted in the earth are generally immovable. However, there are some exceptions.
  • Standing Timber – It is a movable property. A green tree rooted in the earth is called Standing Timber, provided its woods are generally used for Timber purposes i.e., for making Houses or Household furniture, for example, Sheesham, Neem, Babool, or Teak.
  • Fruit-bearing trees are not Standing Timber. They are planted and grown for taking fruits etc, from them and not for taking wood. It is immovable.
  • Mango Tree is immovable or not depending on the purpose it is used.

Cases Of Exemptions Growing Crops:

It means crops standing in the field, for example, Wheat or Barley is not immovable because every crop is bound to be cut in the near future when it is ripe. Also, potato, sugarcane, etc.,

Grass:

Grass in the field has no other utility except that it could be used as fodder for cattle. For this reason, it is bound to be cut down or grazed by animals.

The Proper List Of Immovable Properties

  • Houses, Land, Trees attached to the ground.
  • Factory Buildings
  • Contract for cutting bamboo for a specified amount of time.
  • Ed for commercial work.
  • Statues, paintings, or other decorative paintings can be classified as immovable if they are installed with the intention of permanent attachment to the Tenement.
  • Fertilizer utilized on a farm or a garden.
  • Mines, quarries, or slag dumps.
  • Government contracts for public work, servitude, or other rights over a property.
  • Beneficial interests arising out of the land, for example, right of Way or an Easement.
  • Rights under lease or an easement.
  • Rights to extract gold, silver, coal, or other minerals from mines.
  • Rights of fishery i.e., right to catch and collect fish from a pond, lake, or river.
  • Right of ferry i.e., right of transport through rivers.
  • Right to collect dues from a fair or hut.
  • Right to hold an exhibition on a fair on one’s land.
  • Right to take forest produces e.g. tender leaves etc and soil for making bricks.
  • Right to collect Lac from its Trees.
  • Mortgage-debt i.e., a loan secured by mortgaging an immovable property.
  • Equity of Redemption.
  • Office of the hereditary priest of a Temple. also its emoluments.
  • Right of a Maha Brahmin to receive dues at a funeral.

Advantages Of Tax Exemption

  • The immovable properties are not subjected to Sales tax and Central tax.
  • They are not subjected to certain restrictions and conditions under Tax Act and Central Sales Tax Act 1956.

Conclusion

  • The immovable property concept is introduced to focus on improving the social and economic aspects of the property.
  • It helped us to get relieved from the Zamindars and Subedars property-related guidelines system.
  • Namma Family Builder and Developer Pvt Ltd is the best builder in providing all types of proper guidelines for effective investment in real estate properties. and also the best builders in Chennai doing excellent customized home construction works in the real estate field.

FAQ

1. Which is immovable property?

  • Immovable property is commonly referred to as real estate – a residential house, a warehouse, a manufacturing unit or a factory. 
  • The plants or trees that are attached to the earth are referred to as immovable property. 
  • In the case of realty, they remain liable to legal statutes and also taxation.

2. Can we transfer immovable property?

  • Transferring Via Relinquishment of Ownership in A Property


    • When a Relinquishment Deed is executed, the immovable real estate can be transferred with or without a considering. 
    • This transfer is irreversible.
    • Stamp duty is applicable once the deed has been registered

3. What is the difference between movable and immovable property?

  • Immovable property, in the sense used, commonly refers to real estate (such as your house, factory, manufacturing plant, etc.) 
  • while movable property refers to movable assets (such as your computer, jewelry, vehicles, etc.)

4. What is the rule of succession for immovable property under International Private law?

  •  In terms of disputes between international parties, conventions of Private International Law are considered. 
  • Under the Private International Law, Lex situs i.e. law of the place where the immovable property is situated governs the rules of succession and should be adhered to.
  •  

5. What are the rights of immovable property?

  • Hereditary allowances, right of way, equity of redemption, and right to collect rent are all basic rights for any immovable property. 
  • Things rooted in the earth, things embedded in the earth, things attached to what is so embedded, and chattel attached to earth or building are considered immovable.
  •  

6. Can any guardian purchase or sell an immovable property on behalf of a minor?

  • Any agreement for the purchase of immovable property has to be executed by his natural or legal guardian on behalf of the minor, as the minor is not competent to contract. 
  • While acting on behalf of a minor, the guardian has to act in utmost faith, for the benefit of the minor.
  •  

7. What seems to be an immovable property but actually is not?

  • Standing timber, grass and growing crops may seem to be immovable property but actually, they are not.

8. Can the immovable property be attached?

  • The attachment is effected by notice in writing by the sheriff served upon the owner of the property and upon the registrar of deeds or other officer charged with the registration of such immovable property.

9. What is TDS (Tax Deducted at Source) on Property

  • The Finance Bill 2013 has proposed that purchaser of an immovable property (other than rural agricultural land) worth ` 50 lakh or more is required to pay withholding tax at the rate of 1% from the consideration payable to a resident transferor

This Post Has 2 Comments

  1. Sundari

    I had this article bookmarked a while ago. Good Blog.

    1. NFBD Pvt Ltd

      Thanks for the bookmark,

      Thanks for your feedback, it is much appreciated

Leave a Reply