This is from https://thecolumnofcurae.wordpress.com/2020/11/10/things-attached-to-earth/ which appears to be a blog by lawyers from India.

Things Attached To Earth

Transfer of Property Act deals with both movable and immovable property. It is necessary to distinguish between the two. Section 3, Para 2 of the Act defines Immovable Property, as ‘Immovable Property’ does not include standing timber, growing crops or grass.

The expression ‘standing timber’ means trees fit for use for building or repairing houses. Growing crops include all vegetables growths, which have no existence apart from their produce such as pan leaves, sugarcane etc. Similarly, grass can only be used as fodder and is a movable property.

The above definition as negatively defined under the T.P.Act, excluding the above three items is not comprehensive. It merely excludes standing timber, growing crops and grass. It only says that three things, namely, standing timber, growing crops and grass are not immovable.

General Clauses Act 1897: Section 3(26) of the General Clauses Act, 1897 defines ‘Immovable Property’ as follows:

“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.” This definition has reference only to physical objects and does not furnish an exhaustive test of what is, and what is not, immovable property. The term immovable property includes three things namely-

(i) Land

(ii) Benefits arising out of land; and

(iii) Things attached to earth.

(i) Land: This word does not include only the upper surface of the earth but is extensive enough to cover things below it, for example, minerals. All these are immovable property. Any right in these or in respect of these or any other interest in it are all immovable property. Besides well, tube-well, rivers, ponds, tanks. stream, canal, dug on surface whether natural or artificial and all interests in these would fall within the meaning of the term ‘land’.

(ii) Benefits arising out of land: Benefits arising out of land like the right to receive future rent is an Immovable Property. The examples of benefits are rent from house, shops and Jagir, Revenue from agriculture, right to collect lac, leaves or other things from forest trees, etc. Similarly, right to collect Tahbazari from rural market, Baithaki right to collect tax on ghats and bridges are al examples of benefits arising out of land.

(iii) Things attached to earth: Following items fall within

Things rooted in earth: E.g.: trees, shrubs excluding
Things imbedded in the earth: E.g.: wall and buildings,
Things fastened for the permanent beneficial enjoyment of anything embedded to earth. E.g.: windows, doors,

Indian Registration Act, 1908: Section 2(6) of the Act, defines ‘Immovable Property’ as “immovable Property includes land, buildings, hereditary allowances, rights of ways, lights, ferries, fisheries or any other benefits arising out of land and things attached to the earth but not standing timber, growing crops or grass”.

This definition is a better one since it has covered items. This definition also excludes standing timber, growing crops and grass. If the above three definitions are viewed together, it is clear that they do not tell us what immovable property is. They only tell us what is either included or not included therein. In all the above three definitions, the last three things viz. standing timber, growing crops and grass are excluded from the definition since they are severable from the land. Correct idea of immovable property: The negative definition of the T.P.Act and the positive definition of the General Clauses Act as stated above are if taken together, we succeed in giving correct idea of immovable property as follows:

“Immovable property” means, ‘land, benefits to arise out of anything attached to the earth land and things attached to the earth or permanently fastened to It is clear from the above that the term ‘immovable property includes three things namely land, benefits to arise out of land and things attached to earth. It excludes three things namely, standing timber, growing crops and grass.

The expression “Attached to earth is defined under Section 3, Para 6 of the T.P.Act as follows:

“Attached to the earth” means-

(a) rooted in the earth, as in the case of trees and shrubs;

(b) embedded in the earth, as in the case of walls or buildings; or

(a) Things rooted in the earth: According to the definition, trees and shrubs come within the meaning of the immovable property subject to exception as to standing timber.

(b) Things embedded in the earth: The word “embedded’ means “a thing whose foundation is laid well below the normal surface of the earth.” E.g.: walls and buildings.

(c) Things fastened to things embedded for its permanent beneficial enjoyment: This category includes the cases of doors windows, ceiling fans, etc. These are fastened to walls and ceilings for the permanent beneficial enjoyment of the room or house. These are, therefore, things attached to earth and immovable property but ornamental fittings, festivities, electrical appliances and other decorations though fastened to walls, doors, etc. are not so attached for the simple reason:

(i) that these are not permanent but only transitory an occasional;

(ii) and, are not in any sense beneficial to the wall or door.

Therefore, these are not immovable properties.

In the case of Marshall vs. Green, 33 LT 400, the transaction was a sale of trees to be cut and taken away immediately. It was held that it was not the sale of any interest in land but merely of timber, which formed the subject matter of a transfer to be movable property. On the principle stated in this case it has been held that fruit-bearing trees are immovable property when the intention of the parties is that the fruit of the trees should be enjoyed and not that the trees should be cut down for use as timber. When what is sold is only the right to cut and enjoy the trees as timber, no interest in immovable property is transferred. If such a right extends over a period of years, it is an interest in immovable property.

Seeni Chettiar vs. Santhanathan, 330 Mad. 58 (FB) – In this case, it was held that right to cut trees (as and when they grow) for a period of four years, relates to immovable property and it requires registration

In this case of Ansari vs. Board of Revenue, AIR 1960 AP 399, the right to take away beedi leaves, bamboos and standing timber over a period of one year was held to be not immovable.

(i) Land

(ii) Benefits arising out of land; and

(iii) Things attached to earth.

…

(i) that these are not permanent but only transitory an occasional;

(ii) and, are not in any sense beneficial to the wall or door.

Therefore, these are not immovable properties.

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Things Attached To Earth

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