‘Land’ refers to and comprises soil, structures, meadows, waterways, marshes, minerals, and other natural resources. land extends indefinitely from the earth’s surface to everything that extends upwards (airspace) or downwards (such as minerals found beneath the surface).
India’s land laws are mainly dealt with under the Transfer of Property Act, 1882. This Act does not define the phrase ‘immovable property’. The properties not included in the definition of immovable property are standing wood, growing timber, or grass.
The most significant land law enacted by the government of India is the land acquisition act 2013, in the best interest of the individuals whose land is being acquired.
Land laws have a history in the interest of small farmers who do not have huge cultivation lands. Land laws have played a crucial role in the acquisition of lands by small farmers or distributing lands to farmers with no land.
Table of Contents
What is ownership of land?
The Transfer of Property Act of 1882 states that only a registered document can transfer or sell the right to immovable property (or land).
The Registration Act of 1908 governs the registration of such papers. As a result, the registration of land in India refers to the registration of the transaction (or sale document) rather than the property title registration (Ministry of Rural Development, 2008).
A registered sale document does not provide government assurance of land ownership. Even legitimate property transfers may not always ensure rights because a prior transfer of the property may be disputed. During such transactions, it is the buyer’s responsibility, not the registrar’s responsibility, to examine the historical ownership records of a property.
Furthermore, because no single document in India guarantees title, many papers establish land ownership. Examples are registered sale deeds, rights records (including property data), tax receipts, and government survey documents. Therefore, land ownership in India is presumptive and subject to challenge because of numerous papers.
Registration of land as per Indian law
‘Property’ refers to both movable and immovable property, and land is included in the immovable property. Thus, the land is the species, and immovable property is the genus, and for a land transfer, both parties must execute a written deed.
All land transactions must be recorded in writing—whether a sale, mortgage, lease, exchange, gift, or actionable claim. Property worth more than Rs. 100 should be sold or mortgaged.
The land lease should be longer than 1 year, with an annual rent reserved. These transfers must be made using a registered instrument and attested.
Exclusion of standing timber, growing crops, or grass from immovable property
In Sukry Kurdepa v. Goondakull case, the court defined movability as ‘a thing is considered immovable when it cannot change its location without causing harm to the quality of which it is, what it is’.
Trees stay immobile as long as they are connected to the soil. These trees become moveable property when they are detached from the ground. Standing wood refers to teak, neem, and bamboo used to construct homes, ships, and other structures.
After cutting, the trees can be sold and used for many purposes. Trees such as orange and mango cannot be considered mobile since they are planted for the fruits rather than wood, and immovable trees can be used for lumber.
Wheat, rice, and sugarplum are moveable crops. When these crops are linked to the ground, they have no value, and grass can only get used as animal feed.
What are the rights of a landowner?
India is a country with numerous real estate regulations. Land rights are of several types, which are part of a wider bundle of rights that exist due to inheritance, operation of law, and so on, and they include the following:
- Leasehold rights relate to a tenant’s or lessee’s exclusive interest and right to possess/hold and use property under the terms of a lease agreement established between the landlord or lessor (who owns the property) and the tenant for a certain period.
- Freehold rights: These rights indicate that the property owner enjoys ownership rights over the whole property rather than any other entity. Therefore, the owner of such an estate has entire ownership in perpetuity. The freehold property owner can use the land parcel for any lawful purpose, subject to local norms and laws.
- Development rights: Owners of property have the right to make improvements following local or state laws. The Transferable Development Right (TDR) is a sort of development right that can recompense owners by allowing them to use the development potential of their owned land parcel from another land parcel.
TDRs are recognised by some states and are controlled by building codes and municipal legislation. Another method of obtaining property is to engage in a joint development agreement with the title holders of the relevant land parcels for the joint development of a real estate project. Contractual rights are the same.
- Charge on property/mortgage rights: A charge or mortgage creates interest on behalf of the mortgagee or lender in the immovable property in question to obtain the following:
- Current or future debt
- Fulfilment of an engagement that may result in monetary liability
In India, several forms of mortgagee rights can be created for immovable property. These rights include usufructuary mortgages, English mortgages, mortgages based on conditional sales, simple mortgages, anomalous mortgages, and mortgages based on the deposit of equity mortgages/title deeds.
- Licence rights refer to a licensee’s non-exclusive right to enter, occupy, and use a property. The licensee does not get any interest or easement in the land, and the rights mentioned are not inheritable or transferable.
- Easement rights: Easements are of two key types:
- Easements granted for the beneficial enjoyment of a specific parcel of land, and
- Easements granted for preventing or preventing the use of another parcel of land (whether it is his/her own or not).
The ‘Right of Passage’ is an example of an easement right.
- Subsurface rights: These are the rights to the ground underlying a parcel of property and any material discovered beneath it. Subsurface rights include mineral rights, for example.
The TPA, 1882, has proved to be efficient legislation concerning the aspect of land laws in India and has undergone several amendments to omit any anomalies with the act’s implementation. Land, any advantages derived from the land, objects attached to the land, and things fixed to what is thus attached are all examples of immovable property. Any type of land or accretion to it shall be considered immovable property under the act, as the transfer of such property necessitates compulsory registration.
What exactly do you understand by ‘land’ in the context of the Transfer of Property Act?
The immovable property is defined under the General Clauses Act. It specifies that immovable property comprises land, land benefits, objects attached to the earth, and things permanently fixed to what is thus attached. As a result, the term ‘land’ encompasses anything that exists on, above, or beneath the land, and it also spreads forever to everything in the surrounding area.
Is the term ‘land’ inclusive of the sky?
The land encompasses both airspace and the terrain. It also includes the minerals found beneath the earth.
Is 'land' inclusive of walls, windows, fields, and marches?
Any natural or human-caused accretion to land is considered part of it. Any man-made structures, such as walls and windows built to get permanently linked to the land, are examples of such accretion.
The land also comprises natural formations such as farms and meadows. So walls, windows, and fields are human creations and do not appear naturally. These things are not included in the definition.
Where is the term ‘transfer of property’ defined?
‘Transfer of property’ is defined under Section 5 of the TPA, 1882.
Can a property be transferred orally?
Yes, a property can be transferred orally as per provision mentioned under Section 9 of the transfer of property act, 1882.