PETITIONER:
MANGAN LAL DEOSHI
Vs.
RESPONDENT:
MOHAMMAD MOINUL HAOQUE & OTHERS.
DATE OF JUDGMENT:
01/12/1950
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
DAS, SUDHI RANJAN
CITATION:
1951 AIR 11 1950 SCR 833
ACT:
Indian Registration Act, 1908, 8.17 (1) (b) and (d), s.
17 (2)-"Lease "--Compromise decree creating under lease
between A and B on condition that A pays a sum of money to
C--Whether compulsorily registrable--Agreement to lease not
creating immediate interest land--Whether "lease".
HEADNOTE:
An agreement for a lease, which a lease is by the Indian
Registration Act declared to include, must be a document
which effects an actual demise and operates as a lease. It
must create present and immediate interest in land.
Where a litigation between two persons A and B who claimed
to be tenants under C was settled by a compromise decree the
effect of which was to create a perpetual underlease between
A and B which was to take effect only on condition that A
paid Rs. 8,000 to C within a fixed period:
Held, that such a contingent agreement was not "a lease"
within el. (a) of s. 17 (t) of the Indian Registration Act,
and even though it was covered by cl. (b) of the said sec-
tion it was exempt from registration under el. (vi) of subs.
(2) of s. 17.
Hemanta Kumari Debi v. Midnapur Zamindari Co. (I L.R. 47
Cal. 485 P.C.) relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.94 of
1949.
107
834
Appeal from a judgment and decree of the High Court of Judi-
cature at Patna in Appeal from Appellate Decree No. 97 of
1946 (Mannohar Lall and Mukherji JJ.) dated 23rd Decem-
ber, 1947, confirming the judgment of the District Judge
of Purulia in Appeal No. 159 of 1944.
S.P. Sinha (P. K. Bose, with him) for the appel-
lant.
N.C. Chatterjee and Panchanan Ghosh (Chandra Narayan
Naik, with them) for the respondent.
1950. December 1. The Judgment of the Court was deliv-
ered by
PATANJALI SASTRI J.–This appeal arises out of a suit
brought by the respondent in the court of the Subordinate
Judge, Dhanbad, for recovery of arrears of royalty and cess
from the appellant and another alleged to be due under a
compromise decree passed on the 6th March, 1923, in a previ-
ous suit between the predecessors in interest of the par-
ties. The only plea which is material for the purpose of
this appeal is that the compromise decree not having been
registered was inadmissible in evidence. The courts below
held that the document did not require registration and gave
effect to its terms in decreeing the suit. The second
defendant has preferred this appeal.
The facts are not now in dispute and may be briefly
stated. On 11th March, 1921, one Kumar Krishna Prasad
Singh (hereinafter referred to as Kumar) granted a perma-
nent lease of the right to the underground coal in 5,800
bighas of land belonging to him to Shibsaran Singh and
Sitaram Singh (hereinafter referred to as the Singhs) by a
registered patta stipulating for a salami of Rs. 8,000 and
royalty at the rate of 2a. per ton of coal raised subject to
a minimum of Rs. 8,000 and for certain other cesses and
interest. On 7th June, 1921, Kumar executed another perma-
nent patta leasing the right to the coal in 500 bighas out
of the 5,800 bighas referred to above to one Prayngji Bal-
lavji Deoshi and his son Harakchand Deoshi (hereinafter
referred to as the Deoshis). By this document.
835
the Deoshis agreed inter alia to pay royalty at the rate of
2a. per ton on all classes of coal raised subject to a
minimum of Rs. 750 a year. The Singhs feeling themselves
aggrieved by the latter transaction brought a title suit
(No. 1291 of 1921) in the Court of the Subordinate Judge of
Dhanbad for a declaration of their title and for possession
of the 500 bighas leased to the Deoshis under the aforesaid
patta of 7th June, 1921. To that suit Kumar was made a
party as defendant No. 3, the Deoshis being defendants 1 and
2. The suit was however cornpromised on 6th March, 1923, by
all the parties and a decree based on the compromise was
also passed on the same day. The interest of the Singhs was
brought to sale in 193S in execution of a decree obtained
against them and was purchased by the plaintiff who insti-
tuted the presnt suit on 3rd October, 1942, claiming the
royalty and cesses payable under the compromise decree for
the period from Pous 1345 to Asadh 1349 B.S. from defendants
1 and 2 as the representatives of the Deoshis who entered
into the compromise of March, 1923.
In order to appreciate the contentions of the parties,
it is necessary to set out the relevant terms of the compro-
mise decree which are as follows :–
“The plaintiffs (the Singhs) within two months from this
date shall pay Rs. 8,000 as salami to defendant No. 3
(Kumar). Otherwise all the terms of the compromise Will
stand cancelled and the plaintiffs shall not be competent to
claim any right to or possession over the.land covered by
the patta dated 11th March, 1921… The patta which defend-
ant No. 3 executed in favour of the plaintiffs in respect of
5,800 bighas of coal land in village Rahraband shall remain
in force, and the plaintiffs will get a decree of declara-
tion of their right and title to the 500 bighas of coal land
in dispute but defendants 1 and 2 (the Deoshis) shall hold
possession as tenants. Besides the terms mentioned below,
defendants 1 and 2 shall remain bound by all the remaining
terms under which they took settlement of the 500 bighas of
coal land from defendant No. 3 under
836
patta and Kabuliyat, and both the defendants 1 and 2 shall
possess the same under the plaintiffs from generation to
generation and all the terms of the said patta and Kabuliyat
shall remain effective and in force between them. Both the
defendants 1 and 2 shall remain bound to pay to the plain-
tiffs commission at the rate of 2a. 6p. per ton on all sorts
of coal instead of 2a. a ton as stated before in the patta
of 5,800 bighas of land settled with the plaintiffs.The
plaintiffs shall pay to defendant No. 3 in future the mini-
mum royalty of Rs. 6,000 instead of Rs. 8,000 as stipulated
in the original patta of 11 th March 1921 and commission at
the rate of la. 9p. a ton in place of 2a. a ton as stipulat-
ed in the patta of March 21 …… Unless the plaintiffs
pay to the defendant No. 3 Rs. 8,000 within 2 months from
this day they shall not be competent to take out execution
of this decree, nor shall they be competent to take posses-
sion of the land in dispute. The defendants 1 and 2 within
one month from the date of payment of Rs. 8,000 as aforesaid
to defendant No. 3 shall execute a new Kabuliyat in favour
of the plaintiff in respect of the modified terms stated
above, i.e., on the condition to pay commission at the rate
of 2a. 6p. per ton…In the new patta which defendant No. 3
will execute in favour of the plaintiffs he shall embody the
condition that the annual minimum royalty will be Rs. 6,000
instead of Rs. 8,000 and commission will be at the rate of
la. 9p. per ton in place of 2a. per ton as mentioned in the
aforesaid patta. If the defendant No. 3 does not execute
the parts on the aforesaid modified terms in favour’of the
plaintiffs within the time aforesaid and both the defendants
1 and 2 also do not execute a kabuliyat on the aforesaid
modified terms, then this very rafanama shall be treated as
the parts and kabuliyat, and the plaintiffs in accordance
with the terms of the rafanama shall pay to defendant No. 3,
Rs. 6,000 only as minimum royalty and commission at the rate
of la. 9p. per ton with respect to 5,800 bighas and shall
continue to realise commission at the rate of 2a. 6p. per
ton from defendants 1 and 2 who shall remain bound to pay
the same.”
837
The answer to the question whether this compromise decree
requires registration depends on the legal effect of the
changes in the status quo ante of the parties brought about
by the document. A careful analysis reveals the following
alterations :–
(1) In the lease to the Singhs, the rate of royalty or
commission was reduced from 2a. per ton of coal raised to
la. 9p. per ton and the minimum royalty was reduced from Rs.
8,000 to Rs. 6,000 while the area of coal land in their khas
possession was reduced by 500 bighas.
(2) In the lease to the Deoshis the rate of royalty or
commission was enhanced from 2a. per ton to 2a. 6p. per ton
and tiffs was made payable to the Singhs.
The Singhs and the Deoshis were brought into a new legal
relationship, the former accepting the latter as tenants
holding the disputed 500 bighas under them in consideration
of the latter agreeing to pay the enhanced royalty to the
former.
(4) The whole arrangement was made conditional on the
Singhs paying Rs. 8,000 to Kumar within 2 months from the
date of the compromise, it being expressly provided that the
Singhs were not to be entitled to execute the decree or to
take possession of the disputed area of 503 bighas which
evidently had not till then passed into their possession.
Now, sub-section (1) of section 17 of the Registration
Act, enumerates five categories of documents of which regis-
tration is made compulsory which include” (d) leases of
immoveable property from year to year, or for any term
exceeding one year, or reserving a yearly rent;”. Sub sec-
tion (2) however provided that “nothing in clauses (b) and
(c) of sub-section (1)applies to …… (vi) any decree or
order of court.” It may be mentioned in passing that this
clause was amended with affect from the 1st April, 1930, by
the Transfer of Property (Amendment) Supplementary Act,
1929, so as to exclude from the scope of the exception
compromise decrees comprising immovable property other than
that which is the subject-matter of the suit. But
838
the amendment cannot affect the document here in question
which came into existence in 1923. Before the amendment,
the clause was held to cover even compromise decrees
comprising immovable property which was not the subject
matter of the suit: [Vide Hemanta Kumari Debi v. Midnapur
Zamindari Co. (‘)]. That decision applies to the present
case and obviates the objection that because the compromise
in question covered also the remaining 5,300 bighas which
were not the subject-matter of the title suit of 1921, it
was outside the scope of the exception in sub-section (2),
clause (vi).
The only question, therefore, is whether the compromise
decree is a “lease” [which expression includes “an agreement
to lease” by the definition in section 2 (7)] within the
meaning of el. (d) of sub-section (1). It is obvious that if
the compromise decree fails within clause (d) of sub-section
(1) it would not be protected under clause (vi) of sub-
section (2) which excepts only documents falling under the
categories (b) and (c) of sub-section (1). The High Court
was of opinion that, on a proper construction of the terms
of the compromise, it did not fall under clause (d). Mano-
har Lall J., who delivered the leading judgment, observed:
“It was a tripartite agreement embodied in the decree of the
court and was, therefore, exempt from registration. It will
be oh.served also that so far as the defendants were con-
cerned, their possession of the 500 bighas was not inter-
fered with and they still remained in possession as the
lessees, but instead of paying the royalty to the plaintiffs
it was agreed between all the parties that the defendants
would pay the royalty in future to Shibsaran and Sitcram.
If the matter had stood there, the learned Advocate for the
appellant could not have seriously contested the position,
but he vehemently argued that when the agreement was not to
pay the same amount of royalty or commission as previously
agreed to but an altered amount of royalty and commission,
the document should be held to fall within the mischief of
section 17 (1)(d)of the
(1) 47 Cal. 485: P.C.
839
Registration Act. The answer to this contention is, as I
have stated just now, to be found in the Full Bench decision
of this court :” [see Charu Chandra Mitra’s case ()]. It
was there held that a mere alteration of the rent reserved
does not make the transaction a new lease so as to bring it
within clause (d)of subsection (1).
We are unable to share this view. It oversimplifies the
compromise transaction which, in our opinion, involves much
more than a mere alteration of the royalties stipulated for
in the previous pattas executed by Kumar. Nor can we accept
the suggestion of Mr. Chatterjee for the respondents theft
the compromise operated as an assignment to the Singhs by
Kumar of the latter’s reversion under the “lease granted to
the Deoshis and all that the latter did was to acknowledge
the Singhs as their landlords and attern to them. On tiffs
view it was said that the transaction would not fall
under clause (d), although it would fall under clause
(b) but then would be saved by the exception in clause
(vi) of sub-section (2). The argument, however,
overlooks that Kumar had leased the area of 5,800 bighas to
the Singhs by his patta dated 11th March, 1921, and the
compromise by providing that the Singhs should pay the
reduced royalty of 1a. 9p. per ton in respect of the whole
area preserved Kumar’s reversion intact. He could not
therefore be deemed to have assigned any part of his inter-
est in 5,800 bighas as landlord to the Singhs who continue
to hold the entire extent as tenants under him. What the
compromise really did was. as stated already, to bring the
Singhs and the Deoshis into a new legal relationship as
underlessor and under lessee in respect of 500 bighas which
were the subject-matter of the title suit; in other words,
its legal effect was to create a perpetual underlease be-
tween the Singhs and the Deoshis which would clearly fall
under clause (d) but for the circumstance that it was to
take effect only on condition float the Singhs paid Rs.
8,000 to Kumar within 2 months
(1) 3 P.L.J. 255
840
thereafter. As pointed out by the Judicial Committee in
Hemanta Kumar’s case (1) “An agreement for a lease, which a
lease is by the statute declared to include, must, in their
Lordships’ opinion, be a document which effects an actual
demise and operates as a lease …… The phrase which in
the context where it occurs and in the statute in which it
is found, must in their opinion relate to some document
which creates a present and immediate interest in the
land.” The compromise decree expressly provides that unless
the sum of Rs. 8,000 was paid within the stipulated time the
Singhs were not to execute the decree or to take possession
of the disputed property. Until the payment was made it was
impossible to determine whether there would be any under-
lease or not. Such a contingent agreement is not within
clause (d) and although it is covered by clause (b). is
excepted by clause (vi) of sub-section (‘2). We therefore
agree with the conclusion of the High Court though on dif-
ferent grounds and dismiss the appeal with costs.
Appeal dismisseel.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: Sukumar Ghose.
