• Sale of land

I hv a house with an adjoining 4 khatta plot of land.
I need to sell 3 kattas of this land as I am in urgent need of funds for treatment purpose.
I hv 3 mahogony trees on this 3 kattas of land ,the ownership of which I wish to retain for sale separately at a later date.
Can I sell the land but retain ownership of the trees.
If yes, can I include a suitable clause excluding the trees in the sale deed of the land.
Since, as per property transfer act standing timber is probably classified as movable property and hence I thought excluding it from sale of an immovable property like land could be possible.
Much obliged for your valued legal opinion on the above.
Regards
Indrajit Mitra
Asked 7 years ago in Property Law
Religion: Hindu

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7 Answers

'Immoveable Property' is defined in Section 2(6) of the Registration Act to include land, buildings, benefits to arise out of land and things attached to the earth or permanntly fastened to anything which is attached to the earth, 'but not standing timber, growing crops nor grass'. If the trees are standing timber, they would not be immoveable property,

2)While a tree, in order to come within the definition of immoveable property, must be a standing tree, every standing tree is not immoveable property; the Legislature has expressly excepted from the definition standing timber trees, growing crops and grass. The reason why they have been excepted from the definition is that, though they are standing for the time being, they are meant not to remain standing, that they can be brought to use only after they have been cut and that they are meant to be cut sooner or later. It is on account of their nature or character that they have been taken out of the definition of immoveable property.

3) if they are timber trees you can sell the land but not the trees

Ajay Sethi
Advocate, Mumbai
97643 Answers
7904 Consultations

Hello,

1) You can sell the land without the trees in question if you get a buyer who is agreeable to buy with the exception of the trees in question.

2) You must certainly add a clause to the effect that the trees are excluded from the sale though they are continuing to stand on the property and specify the time when you are going to sell them and possibly pay him arent at the time the trees are sold.

S J Mathew
Advocate, Mumbai
3602 Answers
175 Consultations

1. Since the tree is considered as integral part of the land you cannot separate tree and land for the purpose of selling.

2. So if you sell the land then the tree will also be sold.

3. Another option is to sell the tree first by felling it and then sell the land.

Devajyoti Barman
Advocate, Kolkata
23361 Answers
524 Consultations

Yes this is possible. That's because these mahagony trees with come under the exception of standing timber and thus wouldn't form a part of the this land, but be treated as a separate movable property.

This may be excluded from your proposed sale and be sold at a later point of time but you.

Vibhanshu Srivastava
Advocate, Lucknow
9696 Answers
312 Consultations

Hello sir , you can mark such clause in your sale agreement .. You can retain the ownership of trees , with mutual settlement on terms such as ;- 1) the ownership of land beneath those trees , when will you extract those tress , will you pratice any commercial activity on those tress, what will be your access right to those tress through land ,,

Hemant Chaudhary
Advocate, Gurgaon
4631 Answers
67 Consultations

You can not separate the tree from the land since statutorily the tree is considered to be an immovable property.

However, if some one agrees to purchase the land with an exception to the trees then you can go for it.

Please bear in mind, if you go with the exception then an specific clause in relation to the same.

Regards

Anilesh Tewari
Advocate, New Delhi
18091 Answers
377 Consultations

Since the trees are in the land to be sold, you may have to sell the land with the trees or you can pay the lease charges for the trees by executing a lease agreement with the buyer for the trees to remain in the land and under usage provided the purchaser agrees for this.

It is no doubt a movable property but since it remains on some other person's land you may have to enter into a lease agreement with the owner for the movable property to remain there..

T Kalaiselvan
Advocate, Vellore
87844 Answers
2366 Consultations

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