The term "property" signifies the subject matter over which the right of ownership or any lesser right carved out of ownership (e.g., mortgage right) is exercised. The Transfer of Property Act, 1882 deals with various specific transfers relating to immovable property. It also lays down general principles relating to transfer of property, which apply equally to movable and immovable property. Movable property may be regarded as comprising of all property other than immovable property. What then is immovable property? It is a surprising fact that the Transfer of Property Act does not contain a comprehensive definition of immovable property. Section 3, Para 2 merely say: "Immovable property does not include standing timber, growing crops or grass". This is a negative definition and is not satisfactory. We can find a workable definition of immovable property in the General Clauses Act, 1897, which reads as follows; "Immovable property include land, benefits to arise out of land and things attached to the earth". The Transfer of Property Act has supplied us in Para 6 of section 3 a definition of the expression "attached to the earth". This expression means:
- Rooted to the earth, as in the case of trees and shrubs;
- Imbedded in the earth as in the case of walls of buildings, or
- Attached to what is so imbedded for the beneficial enjoyment of that to which it is attached.
Things rooted to the earth are immovable property. It should be noted, however, that standing timber, growing crops and grass are not immovable property. The reason for the exclusion of these from the category of immovable property is that they are useful as timber, corn and fodder only after their severance from the land. In case of trees apart from the size of the trees the relevant consideration would be the intention to cut the tree or to let it remain attached to the earth and in the former case it will be deemed as standing timber while in the latter it remains as immovable property.
From the foregoing it is clear that land is immovable property. Land means the surface of the earth and includes subjacent things such as minerals. So also are buildings. Benefits arising out of land, e.g., a right to receive future rent are also immovable property. Trees so long as they are rooted in the earth are immovable property provided they are not standing timber. Timber is useful for house construction, but to be used as timber it has to be severed from the land. So even while it is standing on land, when the wood is useful as timber, the tree is treated only as movable property. Shisham, nim and jack trees, for instance, are useful as timber. So when these trees are ripe for use as timber, even though they are still rooted in the earth, they are treated only as movable property.