Doubts – Property Law

(To ensure better clarity on the subject, it is advisable that all the doubts in a week should
reach the faculty by Friday so the same can be discussed on Saturday)

(Please ensure to follow footnotes for authenticity on the submission)

1) Grass

Grass is per se movable property. However, the term ‘grass’ alone is not the final criteria.
It would be a movable property but only when the intention is to sever it within a short
time. But, if the agreement of sale and purchase of growing grass is not made with
immediate severance, it will create an interest in the immovable property, that is the land
on which it is grown.1
In other words, grass per se is movable but the right to cut grass over a long duration will
amount to be an interest in land which is an immovable property.
Further, as per Section 2 (7) of the Sales of Goods Act, 1930 states that "goods" means
every kind of moveable property other than actionable claims and money; and includes
stock and shares, growing crops, grass, and things attached to or forming part of the land
which are agreed to be severed before sale or under the contract of sale;

2) Growing Crops
Growing Crops has been expressly excluded from the ambit of Section 3 of the Transfer
of the Property Act, 1882 which defines ‘Immovable Property’. Further, as per Section 2
(7) of the Sales of Goods Act, 1930 states that "goods" means every kind of moveable
property other than actionable claims and money; and includes stock and shares, growing
crops, grass, and things attached to or forming part of the land which are agreed to be
severed before sale or under the contract of sale;

3) Test to ascertain whether a chattel after attachment has become a fixture or not and
Tenancy Laws

As per the third kind of test – By whom attached – the law presumes is that nobody would
want to make a permanent improvement of the land belonging to some other person.

Thus, if the owner of the land makes an attachment, strong presumption that the chattel
is a fixture now, while if it is done by licensee or mortgagee, the presumption would be it
is still a chattel. 2

Both the English and Indian Law on fixtures’s application is varied by a plethora of
exceptions in favour of tenant and trade fixtures.3

1
Mulla, Page 20, Mahabir Prasad v. Enayat Elahi, AIR 1951 All 608
2
Poonam Pradhan, Page 21
3
Mulla, Page 27
Before TOPA, 1882 came into being, in the case of Thakoor Chunder v. Ramdhone4 , the
Calcutta High Court stated that:
“We think it should be laid down as a general rule that, if he who makes the improvement
is not a mere trespasser, but is in possession under any bona fide title or claim of title, he
is entitled either to remove the materials restoring the land to the land to which it was
before the improvement was made or to obtain compensation for the value of the
improvement”

Maharashtra Rent Control Act, 1999 talks about increase in the Rent Rate on the structural
improvements made by the Landlord and is silent on what happens to improvements made
by tenants during possession.
Relevant Sections:

Section 11 (1) & (2) & (3): Increase in rent annually and on account of improvement,
special additions by the Landlord
Whereas the Draft Model on Tenancy Act, 2015 through Section 9 makes a slight
reference to mutual agreement on structural improvements and reduction in rent when
there is deterioration of the structure.
Section 9 (6) & (7)
(6) Where the landlord, after the commencement of tenancy and with agreement with the
tenant has incurred expenditure on account of improvement, addition or structural
alteration in the premises occupied by the tenant, the landlord may increase the rent of the
premises by an amount as agreed between the landlord and the tenant, prior to the
commencement of the work and such increase in rent shall become effective from one
month after the completion of work.

(7) Where after the rent of a premises has been agreed or fixed, there has been a decrease
or diminution or deterioration of accommodation or housing services in the premises, the
tenant may claim a reduction in the rent and may approach the Rent Authority in case of
conflict.

4) Floating Island – Whether Movable or Immovable

During the discussions on what amounts to Movable and what not, a question was raised
whether a Floating Island will be a Movable Property or Immovable.
As per the research online, since authorities like Mulla and VP Sarathi are silent on this,
the conclusion can be drawn on the basis of what is the nature of a floating island.
As per Collins English Dictionary a floating island is ‘a floating mass of soil held together
by vegetation’. As per the literal rule of interpretation, since it is floating in nature it defies

4
(1866) 6 WR 228
the ‘being attached to something’ or ‘being embedded’ or ‘being rooted to something’,
hence it will be a movable property.
But, under some circumstances, the due to continuous vegetation and water supply, the
floating island gets attached to a bigger island (forming a small part of it), then such an
attached floating island will be immovable.

5) Interpretative Analysis of Vested and Contingent Interest – Drawing Comparisons

between TOPA, 1882 and ISA, 1925 – Analysis through the Usha Subbarao Case
A lot of confusion happened over the Usha Subbarao Case, particularly, in respect to the
nature of interest of Nadiga Nanjamma. The defendant’s counsel respectfully submitted it
to be an interest contingent one so as to defy appellant’s (deceased’s wife) share in the
property.
The case could not get cleared to the class because the judgment part was not discussed. I
went home, read the entire case. Despite various arguments were stated by the defence
counsel, the court in respect to the nature of interest of Nadiga Nanjamma held:
“We are unable to read the Will as indicating a contrary intention to make a departure
from the rule regarding vesting of the legacy as contained in Section 119 of the Indian
Succession Act. In our opinion, the Will cannot be construed as creating a contingent
interest in the sons of the testator so as to postpone the date of vesting of the legacy till
after the death of Smt. Nadiga Nanjamma. On a proper construction the Will must be
construed as containing a bequeath of a vested interest in favour of the sons surviving the
testator which means that the legacy vested in the legatees, including the husband of the
appellant, at the time of testator's death and after the death of her husband, the appellant
is entitled to claim the one-fifth share of her husband in properties”

6) Is there any practical relevance of the Doctrine of Election?

I have been able to locate practical relevance of Doctrine of Election of Remedies and
Doctrine of Election of Rights. But, what is the relevance of Doctrine of Election (in
relation to transfers as enshrined under the Act), I cannot find one. I have told the guest
lecturer to share any details if he can.