Does immovable property include rights also., Other Topics

[Poornima Gupta]

Is right to catch and carry fish included in the definition of immovable property under general clause act?

Posts / Replies

[Padmanathan Kollengode]

In my opinion yes. it is Profit a pendre.

Pls find the following decision of Supreme Court directly on this:

Anand Behera v. State of Orissa - 1955 (10) TMI 29 - SUPREME COURT

There can be no doubt that the lake is immoveable -property and that it formed part of the Raja’s estate. As such it vested in the State of Orissa when the notification was issued under the Act and with it vested the right that all owners of land have, to bar access to their land and the right to regulate, control and sell the fisheries on it. If the petitioners’ rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in, any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right. But though that is how the matter is put in the petition we do not think that is a proper approach to this case.

The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period. That amounts to a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre: see 11 Halsbury’s Laws of England, (Hailsham Edition), pages 382 and 383. In England this is regarded as an interest in land (11 Halsbury’s Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382). In India it is regarded as a benefit that arises out of the land and as such is immoveable property.

also see:

Bahadur & other v. Sikandar - 1905 (1) TMI 1 - ALLAHABAD HIGH COURT

State of Orissa v. Titagarh Paper Mills Company Limited - 1985 (3) TMI 226 - SUPREME COURT

Smt Dropadi Devi v. Ram Das - 1973 (12) TMI 97 - ALLAHABAD HIGH COURT

Shantabai v. State of Bombay - 1958 (3) TMI 66 - SUPREME COURT

[KASTURI SETHI]

This is an extract from The Law Lexicon, The Encyclopaedic Law Dictionary With Legal Maxims compiled and edited by Sh.P. Ramanatha Aiyar (Reprint Edition 1993).

"The right of a person to fish in waters belonging to another comes within the definition of "immovable property" in the General Clauses Act, 1868 Section 2 Clause 5, being a benefit arising out of the land covered with water.". Later on General Clauses Act, 1868 was changed to 1897.

According to Section 9 Act-I of 1877 (Special Relief) a right of way is not regarded as "immovable property" . (23 B. 673).

Meaning of the phrase, " Right of way" : The legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another:

[KASTURI SETHI]

Read comprehensive reply of Sh.Padmanathan Kollengode Ji, word for word. I concur with his views.