Onerous contract cannot be enforced.

Defendants are the appellants. The respondent/plaintiff in auction obtained the fishing rights in the pond belonging to the appellants for the year 1991-1992. He paid a sum of Rs.32,927. According to him, because of the failure of rains, there was no water in the pond. The plaintiff did not receive the order confirming the auction and therefore, he asked for refund of auction amount. Since the appellants refused to refund the amount, suit was filed. The trial Court decreed the suit and the appellate Court confirmed it. Against that, the present second appeal has been filed.

2. The following substantial questions of law has been raised:

"Whether in law, are not the Courts below wrong in overlooking that the respondent having accepted the conditions in auction is estopped from questioning the same."

3. Learned counsel for the appellants would submit that the contract given to the respondent was a lease and when there is demise of property in praesenti, there is no frustration of contract as per Sec.56 of the Contract Act. The only right which the respondent had was under Sec.108(e) of Transfer of Property Act. To support his case that the contract was not a licence but a lease, learned counsel for the appellants relied on the following judgments:

(1) M.V. Rajan v. Gopal and others, A.I.R. 1975 S.C. 261; (2) Bihar Eastern Gangetic Fishermen Co-operative Society Limited v, Sipahi Singh and others, A.I.R. 1977 S.C. 2149; and (3) Santhosh Jayaswal and another v. State of M.P and Others, (1995) 2 C.T.C. 570.

4. In M.V. Rajan v. Gopal and Others, A.I.R.1975 S.C. 261, it was observed that:

"If these passages give an impression that the learned Judges had treated Exhibit-D as executory agreement incapable of specific performance because of frustration, that view cannot be regarded as correct. In our view on a correct interpretation of the lease, Exhibit-D is demise in present and on that basis the appellant would have been entitled to mesne profits because on the day when possession could have been given, the second respondent with full notice of the lease in favour of the appellant and with the knowledge that respondent had not renewed it continued in possession. It is not as if the later impediment created by the Rent Control Act precludes the first respondent from agitating his appeal as he was bound to, in order to give effect to the demise granted by him to the appellant."

5. In Bihar Eastern Gangetic Fishermen Cooperative Society Limited v. Sipahi Singh and Others, A.I.R. 1977 S.C. 2149, it was observed that:

"That apart, there is an additional reason for holding that the settlement of Jalkar with respondent No.1 was not valid and enforce­able. The right to catch and carry away the fish being a ‘profit a prendre' i.e., A profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act read in the light of Sec.3 (26) of the General Clauses Act. It a ‘profit a prendre’ is tangible immovable property, its sale has to be by means of a registered instrument, in case its value exceeds Rs.100 because of Sec.54 of the Transfer of Property Act. If it is in­ tangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two Situations, the giant of the ‘profit a prendre’ has to be by in means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest."

6. In Santhosh Jayasival and Another v. State of M.P and Others, (1995) 2 C.T.C. 570, it was held that the right to catch fish is profit a prendre and benefit to arise out of land, is an immovable property. The following is the extract from the judgment:

"Under Sec.17 of the Registration Act, read with Sec. 2(16) of the Indian Stamp Act lease means a lease of immovable property and includes a patta kabuliyat or other undertaki