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asffasdfadffEAFADSFSFAFSFAFAFAF, Essays (university) of Law

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Typology: Essays (university)

2018/2019

Uploaded on 11/07/2019

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INTRODUCTION
The phrase ‘benefits to arise out of land’ means profits derived from land without having
any substantial control over the land. Benefit arising out of land is also known as ‘profit
a prendre’.
Section 2(6) of Registration Act says that: “immovable property includes land, buildings,
hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise
out of land, and things attached to the earth or permanently fastened to anything which is
attached to the earth, but not standing timber, growing crops nor grass.”
Section 3(26) of General Clauses Act says that: “Immovable property shall include land,
benefits to arise out of land, and things attached to the earth, or permanently fastened to
anything attached to the earth.”
The courts have recognized a very limited number of ‘profits a prendre’. There is a
numerus clauses of property entitlements and ‘profits’ are one of the classes of this closed
list of proprietary entitlements. Courts are reluctant to include more rights in this list
because property rights are very durable and creation of a number of entitlements as
profits would make it difficult for the subsequent transferees to keep a check on the prior
property entitlements.
The hypothesis of my project is that in essence each and every right is a benefit arising
out of land since there cannot be any activity in this world that can be done in isolation of
land. Therefore, it is quite unreasonable to make a class of entitlement called ‘benefits are
arising out of land’ because in this way each and every activity would have to be
recognized as a proprietary right. A principle/ doctrine that classifies a certain right as
proprietary just because it is already recognized by court and does not recognize a similar
right as proprietary is, according to me, arbitrary and unreasonable.
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INTRODUCTION

The phrase ‘benefits to arise out of land’ means profits derived from land without having any substantial control over the land. Benefit arising out of land is also known as ‘profit a prendre’. Section 2(6) of Registration Act says that: “immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.” Section 3(26) of General Clauses Act says that: “Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.” The courts have recognized a very limited number of ‘ profits a prendre ’. There is a numerus clauses of property entitlements and ‘profits’ are one of the classes of this closed list of proprietary entitlements. Courts are reluctant to include more rights in this list because property rights are very durable and creation of a number of entitlements as profits would make it difficult for the subsequent transferees to keep a check on the prior property entitlements. The hypothesis of my project is that in essence each and every right is a benefit arising out of land since there cannot be any activity in this world that can be done in isolation of land. Therefore, it is quite unreasonable to make a class of entitlement called ‘benefits are arising out of land’ because in this way each and every activity would have to be recognized as a proprietary right. A principle/ doctrine that classifies a certain right as proprietary just because it is already recognized by court and does not recognize a similar right as proprietary is, according to me, arbitrary and unreasonable.

Ananda Behera and anr. Vs. the State of Orissa and an

Facts of the case-

That the petitioners carry on the business of catching and selling fish particularly, from fisheries within the said lake. That long before the vesting of the estate the petitioners had entered into contracts with the expropriator and had obtained from the latter, on payment of heavy sums, licenses for catching and appropriating allthe fish from the fisheries detailed in the schedule given in the accompanying affidavit and had ,obtained receipts on payment in accordance with the prevailing practice". The lake is divided into sections and this petition is concerned with four of them. The licenses relating to them were purchased as follows:

  1. On 30-7-50 for rights in Gerasar Prawn for 1955-
  2. On 2-8-50 for rights in Jayamal Prawn for 1955-
  3. On 18-9-51 for rights in Solakudi Prawn for 1955-
  4. On 6-5-52 for rights in Jayamal Chungudi for 1956-

It will be seen that though the licenses were acquired before the estate vested in the State of Orissa they were for future years, all after the date of vesting. The State of Orissa refused to recognize these licenses and were about to re-auction the rights when the petitioners filed the present petition seeking writs under article 32 on the ground that their fundamental rights under articles 19(1)(f) and 31 (I) were, or were about to be, infringed. The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as articles 19(1)(f) and 31(1) are dependent on that.

SUMMARY OF THE JUDGEMENT

The right to catch away fish from Chika Lake over a period of time is termed as Profit a Prendre in england and benefit arising out of land in India. The court held that the lake is an immovable property and therefore the petitioner’s right to enter in that estate (which he did not own) and carry away fish from the lake is a ‘profit a prendre’ and in India it is regarded as a benefit that arises out of the land and as such is immovable property.