CONCEPT OF PROPERTY: DISTINCTION    BETWEEN MOVABLE AND IMMOVABLE PROPERTY

This article is written by Narayanareddy Sripriya of  BMS College of Law, Bangalore, an intern under Legal Vidhiya

ABSTRACT:

The term property is considered as an asset as it has some monetary value either at present or in the future. The property can be a movable or immovable property where both are dealt with under different laws like movable property is dealt with under the Sale of Goods Act, 1930, and its meaning is given under section 2 (9) of the Registration Act, 1908 and section 22 of IPC. Immovable property is dealt under the Registration Act, of 1908 and Stamps Act, 1899, the General Clauses Act, of 1897 defines the term immovable property.

KEYWORDS: Property, Movable property, Immovable property, Transfer of Property Act, Indian Registration Act 

INTRODUCTION :

Property is something which has monetary value, it can be movable or immovable, corporeal or incorporeal ,tangible or intangible , but it is owned by someone and the person got certain rights over that property through the ownership or the possession .Corporeal property are the properties which are movable or immovable , real and personal property. They are tangible in nature where as  Incorporeal properties are intangible things which cannot be perceived by senses.it includes patents, copyrights , trademarks etc.^[1]

The term property is derived from the latin word ‘properietate’ and equal to French word ‘proprius’ which means “a thing owned”. Property and Ownership are two concepts that are correlated to each other .When a person possess property he gets certain legal rights like proprietary rights not personal rights .

DEFINITIONS:

There are various definitions that speak about the property and the rights that are given under the Transfer of Property Act, of 1882 :

Section 2(c) of the Benami Transaction(prohibition)  Act,1988 defines property as

“Property means property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property.”^[2]

Section 2(11) of the Sale of Goods Act,1930 defines property as

“Property” means the general property in goods, and not merely a special property”^[3]

ORIGIN OF PROPERTY :

At first when the world was ownerless then there was such a concept of property and there is no authentic data about the concept of property coming into existence. However, many of the eminent historians of law have given their reasons and pointed out evidence in order to prove themselves.

Blackstone in one of his commentaries said that at first the property and goods belonged to all mankind and there was no particular owner for the property but in the transitional phase the concept of ‘right of possession’ came as if a person is utilizing a property for his occupation, then he has possession over it for an acquired time and if that person leaves any other can seize that land. Blackstone has enunciated the doctrine of Occupancy which is the first method of acquiring land where “ the transient possession has ripened into perpetual ownership.”

Savigny said that the right to own property was based on adverse possession, here he didn’t speak about the amount of time needed to ripen the possession into absolute possession

Sir Henry Summer Maine dissents from the above view that occupancy as the first method of acquiring property. The doctrine has come only because there is a presumption that everything has an owner. he stated that ancient laws dealt with families not with individuals. The village site and outlying grounds were the first kind of property known to man and encroaching upon other’s land arose controversies.^[4]

KINDS OF PROPERTY :

• Corporeal and incorporeal property
• Movable and immovable property
• Tangible and intangible property
• Public and private property

1. Corporeal property: Corporeal properties are those that are tangible and materialistic in nature and give possession or ownership rights to the person.it includes movable and immovable properties that cannot be moved but transferred or sold. It includes real property which determines rights of ownership of land and personal property which determines the properties that can be moved.
2. Incorporeal property: incorporeal property is intangible in nature which cannot be seen or touched .it includes shares, copyrights, patents, trademarks, stakes, etc. It is also called as intellectual property or conventional property.
3. Movable property: A property that can be moved from one place to another place. ex: vehicle, jewellery, money, etc.
4. Immovable property: A property that cannot be moved from one place to another that is which are affixed to land. ex : house, land, tree, etc.
5. Tangible property: These properties have physical existence and have monetary value.
6. Intangible assets: it has no physical existence and not a monetary asset.Public property: those properties are managed by the public authorities and they are used for the public purpose
7. Private property: These properties belong to an individual person or a particular group but not to the government.^[5]

RIGHTS OF THE PERSON ON PROPERTY :

 At first, the right to property was a fundamental right which is given under articles 19(1)(f) & 31 of the Indian Constitution but after the 44rth amendment in 1978 the right was ceased and it became a constitutional right that can be availed under article 300A in part XII of the constitution.^[6]

• ARTICLE 19(1) (f) : Article 19 states that all citizens have the right to acquire, hold , and dispose of the property.
• ARTICLE 31: it safeguards the right against being deprived of one’s property. No authority can restrict a citizen from possessing property but there is an exemption if the property is of public use, then it can get compensation from the Indian government.

Articles 19(1)(f) and 31 were repealed by the 44th constitutional amendment in 1978 and it became a constitutional right as well as a human right.

• ARTICLE 300A: the 44th constitutional amendment has made the right to property a constitutional right and a human right in the welfare state. if a person is forcibly evicted from his private property without the due process of law, then he can ask for protection under Article 300A

CASE LAWS :

1. In Jilubhai Nanbhai Khachar v. State of Gujarat,^[7] the Supreme Court held that the right to property is not part of the basic structure of the constitution under article 300A and it is only a legal right.
   1. In the case of bank nationalization court has pointed out that the compensation payable under Article 31 must be equal to the value of the property that is seized by force. The expropriate owner must be paid with reasonable compensation according to the constitution^[8]
   1. Recently, in Ravindran v. The District Collector, Vellore district,2020 ^[9]court held that the government has no authority over the individual’s property unless it complied with the law but this was changed in Jalakshmi & others v. State of Tamilnadu (2021)
2. In Indian Penal Code chapter XVII classifies the punishments for the crime committed against any property either tangible or intangible. Section 378 to 462 deals with punishments .
3. In India as there are different religions, they have their own personal laws to deal with inheritance and sharing of property .some of the important acts that deal with property are the Hindu Succession Act,2005 for Hindus , the Indian Succession Act ,1925 for Christians ,Jews , Parsis  and the Muslim personal Law Application Act ,1937 for Muslims.

TRANSFER OF PROPERTY ACT,1882 :

The Transfer of Property Act came into existence in 1882 where before its existence the immovable properties were governed under the English law and the principle of equity. this act applies only to transfer by the act of the parties but not by operation of law. This act is applicable to both movable and immovable property and it deals with trans of property intervivos (between two living persons). According to section 5 of the Transfer of Property Act, the transfer of property is an act by which property is conveyed from a living person to another person or to himself either in the present or future. here the living person includes a company whether incorporated or not or an association or body of individuals.^[10] Essential elements for transfer of property:

• There must be an act performed which is not automatic but legally transferred to another person. This will not include will or inheritance as they are effective only after the death of the testator.
• Both the parties must be living and they can be a human being or a juristic person but they must be competent to transfer under Indian Contract Act.
• The transferor must have the title with him to make a valid transfer. the title must be transferred from transferor to transferee.
• The transfer can be made in the present or in the future by making an agreement and also it can include conditional transfer.
• The property about to be transferred must be in existence and it can be movable, immovable or intangible, etc.
• The property can be transferred to any other person or to himself.in the case of Naranbhai v. Suleman,1975 , guj HC held that the person made a trust, appointed himself as trustee, and transferred to himself and it is a valid transfer.

 MOVABLE PROPERTY DEFINITIONS :

According to section 3(36) of the General Clauses Act, movable properties are those which are not immovable properties.^[11]

According to section 2(9) of the Registration Act,1908 movable properties are   those which are not immovable properties and of such description They include standing timber, growing crops, grass, etc.^[12]

According to section 22 of the Indian Penal Code, movable property refers to corporeal property 2that is which can be seen and touched like money, building , machinery etc. , and they are not attached to land.^[13]

According to section 2(7) of the Sales of Good Act, movable properties include stock, shares, crops, grass, and things that are attached to land but can be severed and do not include actionable claims, or money. ^Here the actionable claim is that which doesn’t allow to enjoy the benefit but has the right to recover by filing a suit.

IMMOVABLE PROPERTY :

According to section 3(26) of the General Clauses Act,1897 immovable properties include land, and the benefits that arose out of it, objects that are attached to the earth and permanently cannot be severed.^[14]

According to 2(6) of the Registration Act,1908 immovable property will are those permanently fastened to earth which includes land, lights, ferries., fisheries etc. but it doesn’t include standing timber, growing crops nor grass.

According to section 3 of Transfer of property act immovable property does not include standing timber, growing crops or grass   

    CASE LAWS:       

1. Krishna v. Akilenda, 1885, 13 Mad- Right to transport through rivers is  Immovable property.
2. Kalka Prasad v. Chandan Singh, 1888, All- Growing crops such as wheat, barley, and grapes, vegetables are moveable property as they are bound to be cut.
3. Santosh Jaiswal v. State of M.P., AIR1996 SC 207- The right to catch and collect fish from a pond, river, or tank is Immovable property.
4. In the case of Marshall vs. Green¹⁵ contract was made between two parties ‘sale of the trees by cutting and taking away within reasonable time. Here court held that sale was not of immovable property hence registration is not necessary under the registration act.
5. Shanta Bai v. State of Bombay 1958 SC 532, In this case they distinguished between movable and immovable property. The court held that if the intention is to reap fruits from trees ,it is immovable property and if intention is to cut down the trees and use as timber ,it is immovable property.

DISTINCTION BETWEEN MOVABLE AND IMMOVABLE:

MOVABLE PROPERTY	IMMOVABLE PROPERTY
Movable properties are those which are easily shifted or moved from one place to another.	Immovable properties are those that cannot be moved from one place to another
It includes jewelry, vehicles , electronics, etc.	It includes the property that is under real estate like housing, land , factory, etc.
Registration for movable properties is not compulsory.it is only to protect the ownership of the property	Registration is compulsory if the value of the goods is above Rs.100 and it must done under The Registration Act,1908
These properties are easily transferable as they are less formalities when compared to immovable property	These properties require some formalities to transfer and only if the performed transfer is valid
Movable property can be pledged as security	Immovable property can be mortgaged or kept as a lien for security
It gives the right of possession, right to use, right to transfer, and right to encumber	It gives the right of ownership, right to use, right to transfer, and right to encumber and it also provides rights like collection of rent, dues, etc.
Movable property can be transferred orally or in writing	Immovable property can be transferred only by writing and registration is compulsory

RECENT UPDATES ON MOVABLE PROPERTY ;

• The Central Board of Direct Taxes has recently on july,2023 made a new rule under the Income Tax (thirteenth Amendment ) Rules,2023 for the movable property exchange. 

RECENT UPDATES ON IMMOVABLE PROPERTY ;

• The Jharkhand High Court has recently relied on the judgment of Nevada Properties Pvt Ltd Vs. State of Maharastra & Anr held that the police have no right to seize the immovable property under section 102 of CrPC.
• The Jammu and Kashmir and Ladakh High Court while deciding a case held that the land allotted under the Evacuees Property Act is for temporary right to use and it does not have any right of ownership.
• The Bombay High Court held that the customs authorities do not have the power to seize the premises of land of a person who is involved in smuggling.
• The National Company Law Tribunal while adjudicating a case held that no person can claim for the immovable property which is done under an unregistered sale.^[15]  

CONCLUSION :

From the above discussion, we can say that the term property has been evolving over the period of time and it also provides the citizens with certain rights under different laws. the property either movable or immovable have certain features by which it can be differed and having a property will add monetary value to the person and it is necessary to invest in property in the present situation as it can create a huge difference for the future.  

REFERENCES:

1. Srdlawnotes, https://www.srdlawnotes.com/2018/03/difference-between-corporealproperty.html?m=1,  last visited Nov 3, 2023.The Benami Transactions (Prohibition) Act,1988,&2Acts of the parliament,1988(India) 
2. The Sale of Goods Act,1930 &2, Acts of Parliament,1930 (India)
3. Luther M.Swygert, Origin of property, Volume 2 , Notre Dame Law review,127
4. 1927,https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4482&context=ndlr
5. AIR 1995 SC 142
6. Rustom Cavasjee Cooper Vs Union of India,1970 AIR 564
7. Ravindran Vs the District Collector,2020
8. Transfer Property Act, section 5, no.4, acts of the parliament,1882(India )
9. The General Clauses Act, section 3, no.10 , Acts of the Parliament,1897(India)
10. The Registration Act, section 2 (9) ,no.16, acts of the Parliament,1908(India)
11. Indian penal code, section 22,1860(India)
12. The General Clauses Act, section 3(26) ,no.10, acts of the parliament,1897
13. 1875,1 CPD 35(A)
14. LiveLaw, https://www.livelaw.in/tags/immovable–property, last visited Nov 5, 2023

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[1] Srdlawnotes, https://www.srdlawnotes.com/2018/03/difference–between–corporeal–property.html?m=1 ,  last visited Nov 3,2023.

[2] The Benami Transactions (Prohibition) Act,1988,&2Acts of the parliament,1988(India) 

[3] The Sale of Goods Act ,1930 &2 ,Acts of Parliament ,1930 (India)

[4] Luther M.Swygert ,Origin of property ,Volume 2 ,Notre Dame Law review,127 (3),1927

,https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4482&context=ndlr

[5] Varsha ,Types of property ,bnblegal, Nov 23,2019 , https://bnblegal.com/article/types-of-property/

[6] INDIA CONST. art 19&31 amended by the 44rth constitutional amendment act ,1978

[7] AIR 1995 SC 142

[8] Rustom Cavasjee Cooper Vs Union of India ,1970 AIR 564

[9] Ravindran Vs the District Collection ,2020

[10] Transfer of property act ,section 5 ,no.4 ,acts of the parliament,1882(India )

[11] The general clauses act, section 3 ,no.10 ,Acts of the parliament ,1897(India)

[12] The registration act ,section 2 (9) ,no.16, acts of the parliament,1908(India)

[13] Indian penal code ,section 22 ,1860(India)

[14] The general clauses act ,section 3(26) ,no.10 , acts of the parliament ,1897 ¹⁵ 1875,1 CPD 35(A)

[15] Livelaw, https://www.livelaw.in/tags/immovable–property, last visited Nov 5,2023

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