MOVABLE AND IMMOVABLE PROPERTY

By :
RIAZ HUSSAIN
M.A.(Eng), LL.B., D.L.L., D.B.L. (Punjab)
Advocate High Court

Actually there is nothing immovable in this universe. Everything moves or can be moved. Even this earth is moving yet the legislature has given the status of immovables to certain things. In all legal systems these two classes of material objects i.e. moveable property and immovable property are to some extent governed by different rules. According to the legislature, among the immovables are the following objects:-

(1) Land.

(2) Benefits arising out of the land.

(3) Things attached to the earth.

(4) Things permanently fastened with the things attached to the earth.

Let us discuss the things as mentioned above which are included in immovable property according to the legislature. It must also be noticed that what is not immovable is movable. We will here define immovable property only.

1. Land.

Among material things most important distinction is that between movable things and immovable things or between chattel and land.

Land is defined by Salmond as a determinate portion of the earth's surface. II. The ground beneath the surface to the centre of the world. III. Possibly the column of space above the surface "Ad Infinitum". The authority of this however is not beyond dispute and doubt.

2. In the words of Salmond. "It may be that law recognizes no right of ownership in the airspace at all or at least no right of exclusive use, but merely prohibits all acts which by their nature or their proximity (nearness in space and time) interfere with the full enjoyment and use of the surface of the land.

In England it has expressly been provided by statute that the flight of the aircraft at reasonable height above the ground is not actionable at the suit of the owner or occupier of the land below.

All objects which are on or under the surface in its natural state for example minerals and natural vegetation. All these are the part of the land even though they are in no way physically attached to it. Stones lying loose on the surface are in the same category as the stones in quarry i.e. excavation (a place from where stones may be extracted for building).

Lastly all objects placed by human agency on or under the surface with the intention of permanent annexture (add as a subordinate part). These become part of the land and lose there identity as separate movable objects or chattels. For example buildings walls and fences provided that requisite intention of permanent annexture is present. No physical attachment to the surface is required. Conversely physical attachment without the intention of permanent annexture is not itself enough. Carpets, tapestries or ornaments nailed to the floor or walls of a house are not thereby made part of the house. Money buried in the ground is as such a chattel as money in owner's pocket.

It is important to have a view of the definition of "immovables" as given in important statutes namely "General Clauses Act", and Transfer of Property Act, 1882."

General Clauses Act, 1897 defines immovable property as "Immovable property shall include land, benefits arising out of the land, and things attached to the earth or permanently fastened to anything attached to the earth.

Mentionable words in this definition are attached which means accompany, form part of, take part in, join, fasten. "Permanently fastened" means make or become fixed permanently.

"Transfer of Property Act, 1882 provides an exclusive definition "Immovable property does not include standing timber, growing crops or grass.

Timber means large standing trees suitable for wood or for buildings and commercial purposes.

The definition given in General Clauses Act is inclusive which includes certain things in the definition that given in Transfer Property Act, 1882 is exclusive one i.e. it excludes certain things from the definition.

Trees on land are Immovable Property (unless these are timber i.e. suitable for wood to be prepared for industrial or commercial purposes) because trees are attached to or rooted in the earth.

In a case it was held.

"The answer to the question whether tree as "standing Timber" is among the movables or immovables depends on the intention of the parties. If the intention is that the plaintiff should enjoy the fruit of the tree and not cut it down like timber then it is immovable property and could be conveyed only by registered instrument.

2. Benefits arising and of Land.

A right to pluck fruits like mangoes, palm tree, coconut etc. is a grant of right to the benefit arising out of land and is a lease of immovable property.

3. And things attached to the Earth i.e. Buildings, Structure and machinery

Building is immovable property. Doors of a house are not immovable property. So the term immovable is relative one and a question of fact depending upon circumstances. A thing may be immovable at one place and movable at the other for instance doors and windows, stones lying on the surface of land. A house would be immovable property as its walls are and would be permanently fixed in the earth.

"Machinery embedded in the earth. The statutes supra are silent as to what is meant by the phrase attached or permanently fastened"

Attached to the earth means.

(i) rooted in the earth as in the case of trees,

(ii) embedded in the earth as in the case of walls and buildings.

(iii) Things permanently fastened with the things so attached or embedded in the earth for the permanent enjoyment of that to which it is fastened.

For all these aspects in the definition show that the attachment should be such as partake of the character of the attachment to the trees shrubs rooted to the earth or walls or buildings embedded in that sense. The further test is whether such permanent fastening is intended to make the thing so attached to the thing which is attached to the earth. The object so attached to the object which is attached to the earth, makes a part of it, in the case of want of such intention, the object so attached will not fall within the purview of the definition of immovable property. For example a structure made by the tenant on the land temporarily with the intention to remove it when the tenancy is over, does not fall in the definition. The intent with which the thing is so fastened (permanently) with the things attached to the earth is of paramount importance which is determining and deciding the status of the thing so fastened or attached as to whether it is immovables or movables. If the intent is to attach it temporarily with the object to remove or detach it in time of need, as made by a tenant on the land, the annexture remains movable property but when it is attached or annexed with the intent to make it a permanent part of the building, house, land etc. it is immovable object.

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 eg doors, windows to a building.

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.

Case Law:--

In a case Denyolds vs Ashby and Son (1904) AC 466, the issue was whether the machinery attached to the earth was a fixture. The House of Lords considered as the machinery were part of the factory which was the subject matter of the lease, the attachment of machinery to the earth in that manner should be regarded as a fixture (movable) because it was intended to be removed and detached after expiry of the lease period as on stated above, yet the question in each case be decided according to circumstances because performance of the fixture in the context of a relative character.

In the case of power house until the power is dismantled and machinery affixed to the earth is uprooted and until the buildings are demolished, the material with which they are, constructed cannot be called movable property. The undertaking is akin rather to immovable than to movable property.

Whether fan fixed on the wall of building is movable or Immovable property.

Keeping in view all the elements (as discussed and detailed as above) which constitute the definition of immovable property or all the more, taking recourse to analogy and theory of notional extension, the fixation of the electric fan on the wall of the building tends to be movable rather than immovable object for the following reasons. For an object in order to find a place among immovables, it is necessary that it should be '"Permanently fastened to a thing which is attached to the earth as we find in the definition of immovable property put forth by the General Clauses Act. The intention of making it a part of that thing to which so fastened or attached. Here attachment of the fan is not intended to make it a part of the building (like doors and windows) but it is intended to be removed or detached if so needed or be replaced by some other device, so it lacks permanency in its attachment and intention to make it a part of the building, so it has rather move tendency to join the chattels than the immovables.

2. If the attachment is merely for the beneficial enjoyment of chattel itself, then it remains a chattel even though fixed for the time being so that it may be enjoyed.

In the light of above discussion, a fan fixed on the wall of a building may find place among the movables rather than the Immovables.