Case-1-The right to carry away the fish is a benefit arising out of land because it is a right to take some profit of the soil for the use of the owner of the right- Ananda Behera And Another vs The State Of Orissa And Another on 27 October, 1955 Equivalent citations: 1956 AIR 17, 1955 SCR (2) 919
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
Emphasis Supplied
Case-2-Benefits to arise out of land means profits a prendre, rights of fishery and the like-Paresh Nath Singha vs Nabogopal Chattopadhya on 31 July, 1901 Equivalent citations: (1902) ILR 29 Cal 1
“By the expression “benefits to arise out of land” in Section 3(5) of the General Clauses Act are meant profits a prendre, rights of fishery and the like”.
Emphasis Supplied
Case-3-FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property-Sadoday Builders Private Ltd vs The Jt.Charity Commissioner on 23 June, 2011
Can FSI/TDR be said to be a benefit arising from the land. Before answering that issue We may refer to some judgments for that purpose. In Sikandar and Ors. v. Bahadur and Ors. XXVII Indian Law Reporter, 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of Section 3 of the Indian Registration Act, 1877. A lease, therefore, of such right for a period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in Ram Jiawan and Anr. v. Hanuman Prasad and Ors. AIR 1940 Oudh 409 also held, that bazar dues, constitute a benefit arising out of the land and therefore a lease of bazar dues is a lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi v. Ram Das and Ors. on a consideration of Section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an Agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in money would be an adequate relief.
Emphasis Supplied
Case-4- The authorization given to a “Developer” to develop the land and sell super-structure in perpetuity shall undisputedly fall within the words “benefit arising out of the land”-Chheda Housing Development Corpn Vs. Bibijan Shaikh 2007 (2) Bom CR 587 (xvii)
The authorization given to a “Developer” to develop the land and sell super-structure in perpetuity shall undisputedly fall within the words “benefit arising out of the land” and shall, therefore, be held to be “immovable property”.
Emphasis Supplied
Case-5- In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil.-Shrimati Shantabai vs State Of Bombay & Others on 24 March, 1958 Equivalent citations: 1958 AIR 532, 1959 SCR 265
In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood. To that extent the matter is covered by the decision in Chhotabhai Jethabhai Patel & Co. v. The State of Madhya Pradesh (1), and by the later decision in Ananda Behera v. The State of Orissa (2), where it was held that a transaction of this kind amounts to a licence to enter on the land coupled with a grant to out certain trees on it and carry away the wood. In England it is a profit a prendre because it is a grant of the produce of the soil ” like grass, or turves or trees “. See 12 Halsbury’s Laws of England (Simonds Edition) page 522, Note (m). (2) [1953]S.C.R.476,483. (2) [1955] 2 S.C.R. 919, 922, 923.It is not a ” transfer of a right to enjoy the immoveable property ” itself (s. 105 of the Transfer of Property Act), but a grant of a right to enter upon the land and take away a part of the produce of the soil from it. In a lease, one enjoys the property but has no right to take it away. In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil.
Emphasis Supplied
Case-6-“A ‘benefit to arise out of land’ is an interest in land and therefore immovable propert-State Of Orissa & Other vs The Tltaghur Paper Mills Company … on 1 March, 1985 Equivalent citations: 1985 AIR 1293, 1985 SCR (3) 26
The meaning and nature of a profit a prendre have been thus described in Halsbury’s Laws of England, Fourth Edition, Volume 14, paragraphs 240 to 242 at pages 115 to 117:
“240. Meaning of ‘profit a prendre’ A profit a prendre is a right to take something off another person’s land. It may be more fully defined as a right to enter another’s land to take some profit of the soil, or a portion of the soil itself, for the use of the owner of the right The term ‘profit a prendre’ is used in contradistinction to the term ‘profit a prendre’, which signified a benefit which had’ to be rendered by the possessor of land after it had come into his possession.A profit a prendre is a servitude.
“241. Profit a prendre as an interest in land. A profit a prendre is an interest in land and for this reason any disposition of it must be in writing.A profit a prendre which gives a right to participate in a portion only of some specified produce of the land is just as much an interest in the land as a right to take the whole of that produce. . .
“242. What may be taken as a profit a prendre. The subject matter of a profit a prendre, namely the substance which the owner of the right is by virtue of the right entitled to take, may consist of animals, including fish and fowl, which are on the land, or of vegetable matter growing or deposited on the land by some agency other than that of man, or of any part of the soil itself, including mineral accretions to the soil by natural forces. The right may extend to the taking of the whole of such animal or vegetable matters or merely a part of them. Rights have been established as profits a prendre to take acorns and beech mast, brakes, fern, heather and litter, thorns, turf and peat, boughs and branches of growing trees, rushes, freshwater fish, stone, sand and shingle from the seashore A and ice from a canal; also the right of pasture and of shooting pheasants. There is, however, no right to take seacoal from the foreshore. The right to take animals ferae naturae while they are upon the soil belongs to the owner of the soil, who may grant to others as a profit a prendre a right to come and take them by a grant of hunting, shooting, fowling and so forth.”
The Supreme Court further referred that
The earlier decisions showing what constitutes benefits arising out of land have been summarized in Mulla on The Transfer of Property Act, 1882″, and it would be pertinent to reproduce the whole of that passage. That passage (at pages 16-17 of the Fifth Edition) is as follows:
“A ‘benefit to arise out of land’ is an interest in land and therefore immovable property. The first Indian Law Commissioners in their report of 1879 said that they had ‘abstained from the almost impracticable task of defining the various kinds of interests in immovable things which are considered immovable property. The Registration Act, however, expressly includes as immovable property benefits to arise out of land, here diary allowances, rights of way lights, ferries and fisheries’. The definition of immovable property in the General Clauses Act applies to this Act. The following have been held to be immovable (1) 11955] 2 S. C. R. 919 property:-varashasan or annual allowance charged on land; a right to collect dues at a fair held on a plot of land; a hat or market; a right to possession and management of a saranjam; a malikana; a right to collect rent or jana: a life interest in the income of immovable property; a right of way; a ferry; and a fishery; a lease of land”.
Emphasis Supplied