# Afohin er Singh might have remanded the case for a fresh tnal, ut we v. consider that such a course would, in the present The State

- **Citation:** [1950] 1 S.C.R. 833
- **Court:** Supreme Court of India
- **Decided:** 1947-12-23
- **Case number:** CIVIL APPELLATE j!JRISmGTION: Civil Appeal No. 94 of 1949
- **Bench:** Shri Harilal Kania C.J, Patanjali Sastrt, Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/afohin-er-singh-might-have-remanded-the-case-for-a-fresh-tnal-ut-we-v-consider-157
- **Pages:** 8

## Headnote

Indian R<gistration Act. 1908. s. 17 (1) (bl awl (d), !. 17 (21-
" Lease "-Conivromise decree c1·eatina !tnder.lea.se l.Jetw::e11 A and E
on condition that A vavs a. s1t11i. of money to 0-TV!utlrnr comr'llfrorify
regist1·ab
1e-Aareem£nt to lease not creatin'] i'lnm~diate interest in
la~d-Whether ''lease ".
An agreement for a lense, which a lease is by the Indian
Registration Act declared to include, must be a document which
effects an nctu•I demise and operates as a lease. It must creato
a present and irn1nediate interest in land.
Where a litigation between two perrnns A and B who claimed
to he tenants under C was settled by a compromise decree tho
effect of which \\'RS to create a perpetual underlease between
A and B which was to tako effect only on condition that A paid
ll.s. 8,000 to C within a fixed period :
He,7d, that such a contingent agreement was not
11 a. lease"
within cl. (d) of s. I 7 (1) of the Indian Registrotion Act, ond even
though it was covered by cl. (b' of the said section it was exempt
from registration under cl. (vi) of sub·s. (2) of s. 17.
Hemanta Kumari Debi v. Midnapur Zaminiari Co. (I L.R. 47
Cal. 485 P.O.) relied on.
CIVIL
APPELLATE
j!JRISmGTION: Civil Appeal
No. 94 of 1949.
·
107
1950
Dec. l,
834
SUPREME COURT REPORTS
(1950]
1950
Appeal from a judgment and decree of the High
Court of Judicature at Patna in Appeal from AppelM";;!:,:ti1 late Decree No. 97 of 1946
(Manohar Lall and
v.
Mukherji JJ.) dated 23rd December, 1947, confirming
Mohammad the judgment of the District Judge of Purulia in
Jfo;•u! Hague Appeal No. 159 of 1944 .
.tOthera
S. P. Sinha (P. K. Bose, with him)
for the
appellant.
N. C. Chatterjee and Panchanan Ghosh (Chandra
Narayan Naik, with them) for the respondent.
1950. December 1. The Judgment of the Court was
delivered by
Patanjali
PATANJALI SASTRI ].-This appeal arises out of a
8••tri J.
suit brought by the respondent in the court of the
Subordinate Judge, Dhanbad, for recovery oi 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 previous suit between the
predecessors in interest of the parties. 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
statJ!d. On 11th March, 1921, one Kumar Krishna
Prasad Singh (hereinafter referred to as Kumar)
granted a permanent 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 permanent
patta leasing the right to the coal in 500 bighas out of
the 5,800 bighas referred to above to one Prayagji
Bo1llavji Deoshi and his son Harakchand Deoshi (hereinafter referred to as the Deoshis). By this document
--
S.C.R.
SUPREME COURT REPORTS
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. 1291of1921) in the Court of the Subordinate
Judge of Dhan bad 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 compromised 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 Sin

## Text

. .
•
S.C.R.
SUPREME COURT REPORTS
833
of the Indian Penal Code, and direct that he be set at
195"
liberty forthwith. In crdinary circumstances, we
-d-
.
.
b
Afohin er Singh
might have remanded the case for a fresh tnal, ut we
v.
consider that such a course would, in the present
The State.
case, be unfair and contrary to settled practice, seeing
that the appellant has been in a state of suspense over
Fail Ali J.
his sentence of death for more than a year .
Appeal allowed.
Agent for the appellant: R.S. Narula.
Agent for the respondent: P.A. Mehta.
MANGAN LAL DEOSHI
v.
MOHAMMAD MOINUL HAQUE & OTHERS.
[SHRI HARILAL KANIA C.J., PATANJALI SASTRT
and DAS JJ.]
Indian R<gistration Act. 1908. s. 17 (1) (bl awl (d), !. 17 (21-
" Lease "-Conivromise decree c1·eatina !tnder.lea.se l.Jetw::e11 A and E
on condition that A vavs a. s1t11i. of money to 0-TV!utlrnr comr'llfrorify
regist1·ab
1e-Aareem£nt to lease not creatin'] i'lnm~diate interest in
la~d-Whether ''lease ".
An agreement for a lense, which a lease is by the Indian
Registration Act declared to include, must be a document which
effects an nctu•I demise and operates as a lease. It must creato
a present and irn1nediate interest in land.
Where a litigation between two perrnns A and B who claimed
to he tenants under C was settled by a compromise decree tho
effect of which \\'RS to create a perpetual underlease between
A and B which was to tako effect only on condition that A paid
ll.s. 8,000 to C within a fixed period :
He,7d, that such a contingent agreement was not
11 a. lease"
within cl. (d) of s. I 7 (1) of the Indian Registrotion Act, ond even
though it was covered by cl. (b' of the said section it was exempt
from registration under cl. (vi) of sub·s. (2) of s. 17.
Hemanta Kumari Debi v. Midnapur Zaminiari Co. (I L.R. 47
Cal. 485 P.O.) relied on.
CIVIL
APPELLATE
j!JRISmGTION: Civil Appeal
No. 94 of 1949.
·
107
1950
Dec. l,
834
SUPREME COURT REPORTS
(1950]
1950
Appeal from a judgment and decree of the High
Court of Judicature at Patna in Appeal from AppelM";;!:,:ti1 late Decree No. 97 of 1946
(Manohar Lall and
v.
Mukherji JJ.) dated 23rd December, 1947, confirming
Mohammad the judgment of the District Judge of Purulia in
Jfo;•u! Hague Appeal No. 159 of 1944 .
.tOthera
S. P. Sinha (P. K. Bose, with him)
for the
appellant.
N. C. Chatterjee and Panchanan Ghosh (Chandra
Narayan Naik, with them) for the respondent.
1950. December 1. The Judgment of the Court was
delivered by
Patanjali
PATANJALI SASTRI ].-This appeal arises out of a
8••tri J.
suit brought by the respondent in the court of the
Subordinate Judge, Dhanbad, for recovery oi 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 previous suit between the
predecessors in interest of the parties. 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
statJ!d. On 11th March, 1921, one Kumar Krishna
Prasad Singh (hereinafter referred to as Kumar)
granted a permanent 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 permanent
patta leasing the right to the coal in 500 bighas out of
the 5,800 bighas referred to above to one Prayagji
Bo1llavji Deoshi and his son Harakchand Deoshi (hereinafter referred to as the Deoshis). By this document
--
S.C.R.
SUPREME COURT REPORTS
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. 1291of1921) in the Court of the Subordinate
Judge of Dhan bad 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 compromised 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 1938 in execution of a decree obtained
against them and was purchased by the plaintiff who
instituted the present 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
compromise 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 defendant 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 declaration 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
1950
Mangan Lal
Deoshi
V.
Mohammad
.. 'lloinul Ha2ue
cf Oth!rs.
Patanjali
8a1tri J.
1950
Mangan. Lal
Dtosh$
v.
Mohamma.t
Moi01ul Haqus
¢ Otker1.,
Patanjali
Sadr\ J,
835
SUPREME COURT REPORTS
[1950]
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 plaintiffs commission at
the rate of 2a. 6p. per ton on all sorts of coal instead
of 2a. a ton as stated before in the pat ta of 5,800 big has
of land settled with the plaintiffs ... The plaintiffs shall
pay to defendant No. 3 in future the minimum royalty
of R.s. 6,000 instead of Rs. 8,000 as stipulated in the
original patta of 11th March 1921 and commission at
the rate of la. 9p. a ton in place of 2a. a ton as stipulated 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 possession of the land in dispute. The defendants 1 and 2 within one month frcm the date of
payment of l~s. 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
11'.s. 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 patta 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
patta 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."
,......
•
-
S.(;.R.
SUPREME COURT REPORTS
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 I'{s. 8,000 to l'{s. 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 this was made payable to the Singhs.
(3) 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 l'{s. 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 SO::> bighas which evidently had not
till then passed into their possession.
Now, sub-section (I) of section 17 of the Registration
Act, enumerates five categories of documents of which
registration 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.section (2) however provided that "nothing
in clauses (b) and (c) of sub-section (I) 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 com pro·
mise decrees comprising immovable property other
than that which is the subject-matter of the suit. But
Mangan La,l
Deoshi
v.
Moliammaci
.Uoinul Haqu,4
ct Oth6ra,
-,-
PatanjaU
Sastr~ J.
19~0
Mangan L:il
DJoshi
v.
Mohrimmad
Moin.ul Haque
tl Othors.
Patanjali
S'astri J.
838
SUPREME COURT REPORTS
[1950]
the amendment cannot affect the document here in
question which came into existence in 1923. Before
tlie amendment, the clause was held to cover even compromise decrees comprising immovable
property
which was not the subject matter of the suit : lVide
Hemanta Kumari Debi v. Ji.1idnapur Zamindari Co. (1)].
That decision app)ies 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 cl. (d) of sub-section (1).
It is obvious that if th~ compromise decree falls within
clause (d) of sub.section (1) it would not be protected
under clause (vi) of sub-sect.ion (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).
Manohar
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 observed also that so far as the defendants were concerned, their possession of the 500 bighas
was not interfered 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 Sitaram. 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 C•I. 485; P.O.
-
-
•
S.C.R.
SUPREME COURT REPORTS
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 that 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 attorn
to them.
On this 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 I Ith !\!arch,
1921, and the compromise by providing that the Singhs
should pay the reduced royalty of la. 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 interest in 5,800 bighas as
landlord to the Singhs who continue to hold the entire
extent as tenants under him. 'vVhat 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 between 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 that the
Singh~ paid Rs. 8,000 to Kumar within 2 month::;
IP ~ P, L. J. 2>,5.
1950
Mangan Lal
Deoshi
v.
Mohammad
Moinul Haqu1
tt Others.
Patanjali
Sastri J.
1950
Manann Lal
Deas hi
'·
Mohammad
Moi.nul Haque
& Others.
Patanjali
Saatri J,
1950
Dec, 1.
840
SUPREME COURT REPORTS
(1950]
thereafter. As pointed out by the Judicial Committee
in H emanta K uinar' 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 underlease 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). \Ve therefore agree with the conclusion of the High Court though on different grounds
and dismiss the appeal with costs.
Appeal dismissed.
Agent for the appellant: P. K. Chatterjee.
Agent for the respondent : Sukumar Glzose.
RAJA KAMALA RANJAN ROY
v.
BAIJNATH BAJORIA.
(SHRI HARILAL KANIA C.J., PATANJALI SASTRI
and DAS JJ.)
Conlract~Specific perforn"nce-0.ff:r
to purchase leasehold
right-Stipulation that lesse'J sho-uld obtain consent of lessor-Lessor
ttnreasonably refflsing consent-Lessee, 1vhethe'· relieved of liribility
f0 assign-Suit for
sp-1cifi~ verformince by purchasftr-Maintain.•
abilitr1-Lea.s9 deed-Covenant prohibitin1 assignm;nt of lease without
l
.
"
l
_f!s~or s co:isent,
Sit' i co 1isent,
lunv,~v~r, not to b3 11,11reasonably u·i hhJld in case of respectable p!rso'i "-llieaniru; and effect of co1,>!':1tant.
(1) 47 Ca.I. 48-'i, at p. 494.
-
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