PROPERTY: CONCEPT OF PROPERTY: DISTINCTION BETWEEN MOVABLE AND IMMOVABLE PROPERTY

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This article is written by Nalluri Chetan of 5^th Semester of Vitap School Of Law Amaravati Andhra Pradesh, an intern under Legal Vidhiya

Abstract:

We know that property is something everyone looks for, irrespective of anything. From the birth to the death of a person, property plays a major role. After the death of the person, there is a big question of Who should get property, after the birth of a person, there is a dispute for even whether the born child is entitled to the property or not. we have seen so many instances where there have been killings and murders for property. In this article, I will mostly discuss the definition of property, its historical development, and its many categories, with particular emphasis on the distinction between movable and immovable property and some pertinent case laws.

KEYWORDS: Property, Movable, Immovable Property

INTRODUCTION:

The property was initially included in the Indian constitution in Part III, under Fundamental Rights Article 19 (1)(f) of the constitution. As a result, everyone had fundamental property rights. However, this caused issues for the government as they pooled lands for development and others that are beneficial to the public at large. To avoid all problems, the Moraji Desai government amended the Indian constitution in 1978, namely the 44th Amendment, which removed property from the list of fundamental rights and reinstated it under Article 300A, which states that no person shall be deprived of property without the authority of law[1]. However, there is a concept known as eminent domain, which states that the government has the authority to take land for public purposes and compensate the victim.

As a result of the Amendment, the right simply became a constitutional right rather than a fundamental right, which can even be revoked for public purposes. As we can see, there are numerous definitions provided. Property denotes something that a person owns as an asset, etc. Property can be both tangible and intangible. Whereas tangible refers to what is visible in nature, such as land development, intangible refers to what is not visible in nature, such as shares. There are a few important definitions provided by courts and scholars, as well as a few acts that define property.

Definitions:

According to Austin, property means that it is used to denote the greatest right of enjoyment known to the law, excluding servitudes[2].

According to Locke, “Every man has a property in his person’’. Every individual has the right to preserve “his property, that is, his wife, liberty, and estate’’[3].

Section 2(11) of the Sale of Goods Act defines “Property” as the general property of goods and not merely special property[4].

In R.C. Cooper VS UOI[5] In this case law, the Supreme Court defined property as “the highest right a man can have to anything, being that right which one has to lands or tenements, goods or chattels, which does not depend on the courtesy of others; it includes ownership, estates, and interests in corporeal things, as well as rights such as trademarks, copyrights, patents, and even rights in personam capable of transfer or transmission, such as debts; and signifies a benefactor.”

This is how various academics and courts interpreted the property.

Property is again of two types:

Corporeal property
Incorporeal property

Corporeal property: Corporeal property is something visible in nature, such as land or buildings. Corporeal is further classified into two types, which are as follows:

Movable
Immovable property

Incorporeal Property: Incorporeal property, such as shares, is anything that cannot be seen in nature. Specifically, intellectual property.

Following are the examples of intellectual properties:

Patent: A patent is a privilege granted to the person who created a novel invention that has not yet been manufactured. A patent is granted for a duration of 20 years. The method for filing a patent is outlined in the Indian Patent Act of 1970. A patent primarily protects a person’s ideas. For example, Thomas Alva Edison received a patent for the light bulb, while Alexander Graham Bell received a patent for the telephone.

Copy Right: The Indian copyright statute of 1957 governs copyrights in India. Original literary, dramatic, musical, and creative works, as well as cinematography, are granted copyright. The primary goal of the copyright laws is to safeguard speech. The author will have copyright protection for the rest of his life and for 60 years after his death. For example, Chetan Bhagat’s novels will be copyright protected until his death and for up to sixty years after his death.

Trade Mark: The Trademark Acts of 1999 control trademarks. The trade mark is mostly used for the logo, which may be a distinct sign or phrase from all other works. A trademark is awarded for a ten-year period. It can then be renewed one again. Apple and McDonald’s logos are two examples.

Geographical Indication: The geographical indication is also known as the GI tag is given to a particular product that famous in that place or origin. Example Kashmir saffron.

Distinction Between Movable and Immovable Property

Movable Property: The term “movable property” encapsulates the concept perfectly. Movable property refers to anything that can be moved easily. Several statutes and case laws interpret moveable property.

Section 22 of The Indian Penal Code defines “Movable property” as intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth[6].

Section 3(36) of The General Clauses Act defines Movable property shall mean property of every description, except immovable property[7].

Section 2(9) of The Registration Act defines movable property and includes

Standing timber,
Growing crops and grass,
Fruit upon and juice in trees, and property of every other description, except immovable property.[8]

Apart from these criteria, the finest examples of transportable property include vegetables, vehicles, gold, and animals.

Case Laws

In Bamdev vs Manorma[9], it is said that any piece of equipment is also considered to be movable property. Just because it is embedded in the earth, it cannot be considered immovable property.

In Muthuswami Gounder vs Thulasi Ammal[10], included a car driver was irresponsible while driving, became stuck, and caused harm to the car. However, the Court emphasises that it was not just an accident that occurred, but also an infringement of another’s moveable property and property damage. The defendant is also charged with trespassing on moveable property.

Immovable Property: Immovable property is anything that cannot be moved. For example, fixed land. There are several definitions provided by various statutes, which are as follows:

Section 2(6) of The Registration Act says that immovable property includes land, buildings, hereditary allowances, right to ways, ferries, fisheries, or any other benefit that arises out of land and things attached to the earth permanently fastened to anything which is attached to earth but not standing timber, growing crops, not grass[11].

Section 3(26) of the General Clauses Act says “immovable property” shall include land, benefits that arise out of the land, and things attached to the earth, or permanently fastened to anything attached to the earth;[12]

Case Laws

In Shantabai vs the State [13]of Bombay, the petitioner was granted the authority to harvest and transport wood from the forest. Following that, the government confiscated the land through legislation. The court had to decide whether the privilege granted to the petitioner was immovable or moveable property. After reviewing the definition provided by the legislation, the Court determined that the award was not just for standing wood, but also for trees that would fall gradually as they grew to reach the requisite height in 12 years. In other words, they have a right to benefit from the ground, which is immovable property, rather than standing timber.

In Anand Behera v. State of Orissa[14], The petitioner had received a licence from the Chilka Lake’s proprietor (Raja of Parikud) to catch and appropriate all fish in particular areas of the lake. The Orissa Estates Abolition Act of 1951 was enacted, and ownership of the estate was transferred to the State of Orissa. The petitioner’s licence was denied by the state of Orissa. Petitioner claimed that their fundamental rights under Art 19(1)(f) and Art 31(1) were violated, and that ‘catching and appropriating fish’ is a transaction involving the sale of future goods (the fish), and thus the Act, which only applies to immovable property, would not apply to him. The court determined that the lake is immovable property, and thus the petitioner’s right to enter that estate (which he did not own) and take fish from the lake is equivalent to a ‘Profit a Prendre’ in England, and in India, it is regarded as a benefit arising from the land and thus is immovable property.

DISTINCTION OF MOVABLE AND IMMOVABLE PROPERTY

ASPECT	MOVABLE	IMMOVABLE
DEFINITION	It can be moved easily from one place to another place	It cannot be moved from one place to another place
Examples	Buses, cars, Furniture Electronic equipment.	Land, Buildings, houses.
Legality	It entails minimal legal procedure or no legal procedure.	It entails numerous legal processes; without them, we cannot hold anything.

Conclusion:

Finally, the distinction between moveable and immovable property contains a number of critical aspects that influence their functions in legal, economic, and practical situations. Movable property, which is distinguished by its mobility and relative ease of transfer, provides flexibility and faster transactions, frequently acting as a catalyst for dynamic markets. Immovable property, which includes land and permanent constructions, on the other hand, is a cornerstone of stability and long-term value, contributing to the foundation of economies, urban growth, and wealth accumulation.

Understanding the differences between movable and immovable property is critical for sustaining effective legal systems, promoting economic progress, and protecting individual rights. The regulation of these sorts of property varies by jurisdiction and can have an influence on taxation, inheritance, development, and other factors. Striking a balance between these two categories is critical for sustaining a functional and just society in which people’s rights and community needs are honoured while economic success is promoted.

References:

[1] The Constitution of India 1950

[2] V.D. Mahajan’s Jurisprudence and legal theory.

[3] V.D. Mahajan’s Jurisprudence and legal theory.

[4] The Sale of Goods Act 1930.

[5] 1970 AIR 564, 1970 SCR (3) 530