Human life revolves around the materialistic acquisition and holding of any object, tangible or intangible which has some characteristic value attached to it and hence value of the property becomes the determining factor.

Right to Property in India

The right to property is listed as a “fundamental right” under Article 19(1)(f) and Article 31 in Part III of the Constitution of India, which went into effect on January 26, 1950 and hence it is an enforceable right.

Since right to the property was enforceable right it had its own challenges and consequently became major barrier to the development of the nation as the State sought to acquire private property for public purposes, particularly the expansion of rail, roads, and industries, among other things.

Supreme Court through the landmark judgement ruled that “Right to property is not part of the basic structure of the constitution, and thus Parliament can acquire or take away private property of individuals for the common good and in the public interest”. This decision became the precursor to the Parliament passing the 44th Amendment to the Constitution, which made the right to property an ordinary legal right under Article 300-A.

With a view to giving clarity to the judgement, the Supreme Court made it clear that the executive cannot deprive a person of his right to property without the authority of the law, further amplifying that the State may acquire a person’s property for public purposes in exchange for compensation, which need not be the same as the value of the property acquired, but such compensation must not be illusory or irrationally disproportionate. [1]

The Supreme Court of India’s reiterated its position on property through judgement presented in case of Indian Handicraft Emporium v. Union Of India[2], wherein the Court observed that the right to property is a human right and is a constitutional right under Article 300-A, but it is not a fundamental right. It is a statutory right, but not every claim to property is a property right.

Meaning vs interpretation of Property

The term “property” encompasses all of a person’s rights which includes a person’s life, liberty, reputation, and all such tangible or intangible things which have some characteristic value.

The term property would also refer to a man’s proprietary rights as opposed to his personal rights. In this context, it would refers to a person’s land, house, shares in a business, and so on.  It may also mean to refer to proprietary rights as rem. A freehold or leasehold estate in land, or a patent or copyright is property: but a debt or the benefit of the contract is not.”[3]

The word “property” may also be used in a more constrained sense. In this sense, property purely refers to the right of ownership over tangible objects or physical property.

Section 22 of the IPC defines Property as under:

The term “moveable property” refers to corporeal property of all kinds, except land and things attached to the earth or permanently secured to anything attached to the earth. Things attached to the land, on the other hand, may become moveable property through severance from the earth.[4]

Transfer of Property Act of 1882 states that the rights accompanying a property are also transferred when it is sold.

The two main categories of property are moveable and immovable property.

Immovable property

The Transfer of Property Act does not express immovable property, but it does clarifies that it does not comprise of standing timber, growing crops, or grass.

According to Section 3(25) of the General Clauses Act 1897, “immovable property” includes “land, benefit arising from land, and things attached to earth or permanently fastened to anything attached to earth.”

Indian Registration Act defines that “Immovable Property, includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries, and any other benefits arising from land and things attached to earth, but not standing timber, growing crops, or grass. Immovable property includes lands, benefits derived from lands, and things attached to or permanently fastened to anything attached to the earth”. Agreeing to the definitions above, Immovable Property comprises lands, remunerations derived from lands, and things attached to or permanently fastened to the earth.

Apart from the physical facet, the definition would also include every benefit consequential from and interest in the property, however it would excludes three items: standing timber, growing crops, and grass.

The following objects and things are encompassed in ‘Immovable property’:

• Land – Land includes the earth’s surface, the column of space above the surface, and the ground. beneath the surface, all natural objects on or beneath the surface, such as minerals, land covered by water, such as lakes, rivers, and ponds, and objects placed by human agency with the purpose of permanent occupation, such as buildings, walls, and fences.
• Land-related advantages – Land benefits are also referred to as ‘profit a prendre.’ All benefits arising from immovable property and every interest in such property is also considered immovable property because such benefits cannot be detached from the land, such as hereditary allowances, rights of ways, the right to collect fish from ponds, and so on.
• Things attached to the earth – According to Section 3 of the Transfer of Property Act, “attached to the earth” includes –
  1. things rooted in the earth, such as trees and shrubs;
  2. things imbedded in the earth, such as walls or buildings;
  3. things attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.

The following items have been prudently defined as immovable property: –

• A right of way
• A ferry right
• A right to collect immovable property rent
• A right to catch and carry away fish
• Hereditary rights
• Rights to collect lac from trees, etc.

Movable Property –

Transfer of Property Act of 1882 does not define movable property, however the general clause act states that the “movable property” as “property of any description other than immovable property.” Apropos, following are not reflected as immovable property and would classify as movable property:

• A decree for the sale of immovable property
• A decree for rent arrears
• Royalty
• The right to recover maintenance allowance
• Standing timber, growing crops, and grass
• Machinery that is not permanently attached to the earth, and so on.

The Difference between movable and immovable property

• An immovable property would mean anything, even slightly attached to the land or is caused to sink deeper into the earth by an external force. Whereas if thing is resting merely on its own weight on the ground, the supposition is that it is movable property, unless proven otherwise.
• It would be an immovable property if the purpose of occupation is to provide a permanent benefit to the land to which it is attached. If the objective is only to appreciate the thing itself, then it is movable property even though it is fixed on the land.
• It would classify as immovable property if the purpose of annexation is to provide a permanent benefit to the land to which it is attached. If the sole purpose is to enjoy the thing itself, it is movable property, even if it is fixed on the land.
• The transfer of immovable property necessitates the registration of the document. No registration is required to transfer a movable property.

Important Case Laws

The court held in Smt. Shantabai v. State of Bombay[5]  that the right to enter the land, cut and carry away wood for a period of 12 years is a benefit arising from land and thus immovable property.

In Anand Bahera v. Province of Orissa[6] held that profit derived from land is movable property. The option to walk on the land and draw fish from the lake and remove it is immovable property as it is the land’s benefit. Cattle grazing on the land is also immovable property because it is a profit generated by the land.

[1] Shiva Satiya, Right to property in India: Everything important you … – ipleaders blog ipleaders (2020), https://blog.ipleaders.in/right-to-property-in-india/ (last visited Aug 2, 2022).

[2] [2003] Insc 419

[3] Ibid 1

[4] Interpretation of Section 22, Indian Penal Code

[5] AIR 1958 SC 532.

[6] 1955 SCR (2) 919.

Author: Nayeisha Puri (Intern, Legal Desire)