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PETITIONER: SANTOSH JAYASWAL AND ANOTHER

       Vs.

RESPONDENT: STATE OF M.P. AND OTHERS

DATE OF JUDGMENT11/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  207            1995 SCC  (6) 520  1995 SCALE  (5)535

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals  by special leave arise from the judgment dated 26.8.1994  of the  Division Bench of the High Court of Madhya Pradesh  in L.P.A. Nos.21 and 22 of 1994 titled State of M.P.  and others Vs. Santosh Jaiswal and L.P.A. No. 21/94 titled State  of M.P.  and others  vs. Surendra  Shukla. The question canvassed before the Division Bench was whether the right to  catch fish  in the  tank granted  in favour of the appellants was  in the  nature of  a lease  or  licence,  an instrument  compulsorily   registerable  under   the  Indian Registration Act  and liable  to stamp duty under the Indian Stamp Act.  The Division Bench held that they were leases in respect of  Santosh Jaiswal’s  case (L.P.A. No. 21/94) for a period of  nine months and in Surendra Shukla’s case (L.P.A. No.22/94) for  more than  one year. In the counter-affidavit filed in  this Court,  it was  stated that the lease was for more than two year.      Shri Pramod Swarup, learned counsel for the appellants, contended that  it is only a licence and that, therefore, it is neither  an instrument  compulsorily  registerable  under Section 17  of Registration  Act nor  liable to  stamp  duty under the Indian Stamp Act. We do not agree with the learned counsel. It  is true  that the  learned Single  Judge  while disposing of  the writ  petition found that it was a licence but not  a lease  but before the Division Bench, controversy whether what  was granted to the appellant is a licence or a lease was  not put in issue. On the other hand, it proceeded on the  premise that  they were  leases. The appellants were not even  raised any  contention in  the SLP  nor have  they placed any document before us. Under these circumstances, we would proceed  on the  premise that  they  are  leases.  The contention raised  in the High Court was that since profit a pendre is  not an immovable property and that, therefore, it is not compulsorily registerable instrument. That contention

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was rejected by the High Court.      Section 3  of the  Transfer  of  Property  Act  defines "immovable property".  It does  not include standing timber, growing crop  or grass.  Clause (26)  of Section  3  of  the General Clauses Act is equivalent to Section 2(18) of the M. P. General Clause Act which defines immovable property thus:      "2(18)    "Immovable property"  included      land, benefits, to arise out of land and      things  attached   to  the   earth,   or      permanently   fastened    to    anything      attached to the earth."      Section 17  (1) (d)  of  the  Indian  Registration  Act provides that  certain documents shall be registered, if the property to  which they  relate is  situate in a district in which, and  if they  have been  executed  on  or  after  the specified date.  By virtue  of Section  17(1)(c)  leases  of immovable property  from year  to  year,  or  for  any  term exceeding  one   year,  or   reserving  a   yearly  rent  is compulsorily registerable  instrument. This Court considered the controversy  in The  Bihar  Eastern  Gangetic  Fishermen Cooperative Society Ltd. vs. Sipahi Singh and others [(1977) 4 SCC  145] and  held that  if the  profit a  prendre  is  a tangible immovable  property, its sale has to be by means of a registered instrument in case its value exceeds Rs. 100/-. If it  is intangible,  the sale is required by Section 54 of the Transfer  of Property  Act, 1882,  to be  effected by  a registered instrument,  whatever its  value.  Therefore,  in either situation the grant of the profit a prendre has to be by means of a registered instrument.      Since the  definition of  "Immovable Property" in M. P. General Clause  Act includes  benefits to  arise out of land and things  attached to  the earth,  the question is whether the right  to catch  fish is  a benefit  to arise out of the land. It  cannot be controverted that catching fish from the tank would  be a benefit arising out of the land. Therefore, it is  an immovable  property. Even  though it  is profit  a prendre, since it is a benefit to arise from the land, it is an immovable  property. If  its value is more than Rs. 100/- or the  lease is on year to year basis, it is a compulsorily registerable instrument under Section 17(1)(c) of the Indian Registration Act. It is an instrument under Article 35(a) of Schedule 1-A Clauses (1) to (3) of the Stamp Act. Therefore, it requires  to be  engrossed with  required stamp  duty and registered under Section 17(1)(d) of the Indian Registration Act.      Though Shri  Pramod Swarup,  learned  counsel  for  the appellant, sought  reliance on the judgment of this Court in Ananda Behari  and Another  vs.  The  State  of  Orissa  and another [(1955)  2 SCR  919], The  State of  West Bengal vs. Shebaits of Iswar Sri Saradia Thakurani and others [(1972) 4 SCC 158],  Board of  Revenue and  others vs. A.M. Ansari and others [(1976) 3 SCC 512] and State of Orissa and others vs. Titaghur Paper  Mills Co. Ltd. and another [(1985) Supp. SCC 280] they  render little  assistance to  the facts  in these cases. Therein  the question  was whether the right to catch fish is  a lease  or a  licence. In  view of the language of documents in  those cases,  this Court  considered  that  it would be  a licence  but not a lease. Since the document has not been  placed before us, we cannot decipher whether it is a licence  or a  lease. Since the controversy was not put in issue before the Division Bench, we proceeded on the premise that it is a lease. Under these circumstances, we are of the considered view that the Division Bench of the High Court is right in  its conclusion that it is a lease and being of the value  of   more  than   Rs.  100/-,   and  upwards,  it  is

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compulsorily registerable  under Section  17(1)(d) of Indian Registration Act.      Under Section  17 of  the Registration  Act, read  with Section 2(16) of the Indian Stamp Act, ‘lease’ means a lease of immovable  property and  includes a patta, a kabuliyat or other undertaking  in writing, not being a counter-part of a lease to  cultivate, occupy,  or pay  or deliver  rent  for, immovable property  etc. Right  to catch  fish is  profit  a prendre and  benefit to  arise out  of land  is an immovable property for the purpose of stamp duty. It would, therefore, be clear that since it is a right given to the appellants to catch fish in the tank, it is a profit a prendre attached to or benefit  to arise  out of  the land.  Therefore, it is an instrument for the purpose of stamp duty. Since the duration of lease  in L.P.A.  No.21/94 is only nine months, it is not compulsorily registerable instrument by operation of Section 17(1)(c) of  the  Act.  The  Civil  Appeal  arising  out  of L.P.A.21/94  relating  to  Santosh  Jaiswal  is,  therefore, partly allowed.  It is  an instrument which requires to bear the  appropriate  stamp  duty  but  is  not  a  compulsorily registerable  instrument.   In   appeal   arising   out   of L.P.A.22/94 of  Surendra Shukla, since the duration of lease is more  than a  year, it  is an  instrument and  compulsory registerable  by   operation  of  Section  17(1)(c)  of  the Registration Act  and liable  to stamp duty under the Indian Stamp Act.  Therefore, it  cannot be acted upon unless it is duly engrossed with stamp duty and registered.      The appeals are accordingly disposed of. No costs.