Judgement

Appeal by special leave from a judgment and decree of the High Court (July 6, 1914) affirming a decree of the Subordinate Judge of Zilla Nadia (March 29, 1910).

Law Rep. 46 Ind. App. 240 ( 1918- 1919) Rani Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd

82

The suit was brought by the respondents in February, 1909, as successors in interest to Robert Watson & Co., Ld., claiming specific performance of an agreement to lease to that company certain lands if the appellant recovered them in a suit which she had instituted against the Government for that purpose. The agreement was contained in a compromise petition dated September 20, 1897, in a suit (No. 73 of 1895) brought by the appellant against the said company for the recovery of certain other lands. The compromise petition was embodied in a decree of the Court made on the same date under s, 375 of the Code of Civil Procedure, 1882.

The facts more fully appear from the judgment of their Lordships.

Numerous issues were framed, two only of which were material to the present appeal, namely, (4.) Whether the Court had jurisdiction to pass any decree or order in regard to lands outside the scope of suit No. 73 of 1895, and whether the recital of the petition of compromise as embodied in clause 8 of the decree, is binding and operative against the defendant in the suit; (5.) Whether clause 8 of the petition of compromise, being not perfected by a registered deed, is admissible in evidence and can operate to affect an interest in immovable property.

The relevant provisions of the Indian Registration Act (XVI. of 1908) appear in the footnote. (Indian Registration Act, 1908, s. 2. " In this Act, unless there is anything repugnant in the subject or the context, . . . . (7.) lease includes a counterpart, k abuliat, an undertak ing to cultivate or occupy, and an agreement to lease."

Sect. 17, sub-s. 1. " The following documents shall be registered, .... if they have been executed on or after the date on which .... the Indian Registration Act, 1877, or this Act came or" comes into force, namely—(a) instruments of gift of immovable property ; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title, or interest, whether vested or contingent, of the value of 100 rupees and upwards, to or in immovable property ; . . . . (d) leases of immovable property from year to year, or for any term exceeding a year . . . ."; sub-s. 2. " Nothing in clauses (6) and (c) of sub-s. 1 applies to. . . . (vi.) any decree or order of a Court, and any award." Sect.

49. " No document required bys. 17 to be registered shall (a) affect any immovable property comprised therein, or .... (c) be received as evidence of any transaction affecting such property, .... unless it has been registered.")

The Subordinate Judge made a decree for specific performance, which was affirmed by the High Court on appeal. The High Court having refused leave to appeal, special leave was granted by the Judicial Committee.

Mookerjee J. held that since the agreement did not effect an actual demise or operate as a lease, it did not " affect the property " within the meaning of s. 49 of the Act, and that, consequently, that section did not preclude it from being given in evidence although unregistered.

Beachcroft J. held that as the agreement did not effect a demise it was not " an agreement to lease " so as to be required to be registered by s. 17, sub-s. 1 (d) ; and that under s. 17, sub-s. 2 (vi.)the whole of the decree was admissible in evidence.

1019. May 22, 23. Dunne K.C. and Dube for the appellant. The documents relied on to prove the agreement were required to be registered by the Indian Registration Act, and in the absence of registration were by s. 49 inadmissible in evidence. The agreement was an " agreement to lease " and consequently by s. 2 was included in the word "lease1 and was required by s. 17, sub-s. 1 (d),