SANTOSH JAYASWAL AND ANR.versusSTATE OF M.P. AND ORS.

                  SANTOSH JAYASWAL AND ANR.                                      A
                               v.
                     STATE OF M.P. AND ORS.

                          SEPTEMBER 11, 1995

            (K. RAMASWAMY AND B.L. HANSARIA, JJ.)                                B

     Indian Registration Act, 1908/lndian Stamp Act, 1899/M.P. General
Clauses Act, 1957/Transfer of Prope1ty Act, 1882 :

       Ss.17(1)(c) and (d)/s.2(16), Schedule I, A1ticle 35(a)/s.2(18)/s.3-Im-    C
movable property--Grant of benefit a1ising out of-Right to catch fish-Held,
being a Profit wising out of immovable prope1ty is "immovable prope1ty"-Is
profit a prendre-lnstrwnent is compuls01ily registrable under Registration Act
and required to be engrossed with necessary stamp duty under Stamp Act.

       The respondent-State Government granted to the appellants right to D
catch fish in the tanks. On the requirement of registration of the instru-
ments under Indian Registration Act, 1908 and levy of stamp duty under
Indian Stamp Act, 1899, it was contended before the Division Bench of the
High Court that since the profit a prendre was not immovable property,
the instruments were not required to be registered. The High Court E
rejected the claim. Aggrieved, the appellant filed the appeals by special
leave.

      It was contended on behalf of the appellants that right to catch fish
was in the nature of licence and as such the instruments were neither
compulsorily registrable under the Registration Act nor liable to stamp          F
duty under the Stamp Act.

       Dismissing the civil appeal arising out of L.P.A. No. 22 of 1994 and
_partly allowing the civil appeal arising out of L.P.A. No. 21 of 1994, this
Court                                                                        G
      HELD : l.l. Right to catch fish would be a benefit arising out of land.
Therefore, it is an immovable property. It is a profit a prendre attached to
or benefit to arise out of the land. Therefore, it is an instrument under
clauses (1) to (3) of Article 35(a) of Schedule I to Indian Stamp Act, 1899,
required to be engrossed with necessary stamp duty. If its value is more than H
                                      527
     528                       SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A    Rs. 100 or the lease is on year to year basis, it is compulsorily registrable
     instrument under s.17(l)(d) oflndian Registration Act, 1908. [530-D-E]

           The Bihar Eastem Gangestic Fishennen Cooperative Society Ltd. v.
     Sipahi Singh and Ors., [1977) 4 SCC 145, relied on.

B          Ananda Behari andAnr. v. T7ie State of Olissa andAnr., [1955) 2 SCR
     919; The'State of West Bengal v. Shebaits of Iswar Sli Saradia Thakurani and
     Ors., [1972) 4 SCC 158; Board of Revenue and Ors. v.A.M. Ansali and Ors.,
     [1976) 3 SCC 512 and State of Olissa and Ors. v. Titaghur Paper Mills Co.
     Ltd. & Anr., [1985) Supp. SCC 280, inapplicable.

C          1.2. In the instant case, in the absence of the documents and there
     being no controversy before the Division Bench of the High Court whether
     the documents were leases or licenses, the High Court was right in holding
     that the documents were leases. [530-H]

              1.3. In Civil Appeal arising out of L.P.A. No. 22 of 1994 since the
D duration of lease is more than a year, it is an instrument compulsorily
     registrable by operation of s.17(1)(c) of the Registration Act and liable to
     stamp duty under the stamp Act. Therefore, it cannot be acted upon
     unless it is duly engrossed with stamp duty and registered. [531-E]

E          1.4. Since duration of lease in the civil appeal arising out of L.P.A.
     No. 21 of 1994 is only nine months, it is not compulsorily registrable
     instrument by operation of s.17(1)(c) of Registration Act. However, it is
     an instrument which requires to bear appropriate stamp duty. [531-D]

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8429-30
F    of 1995.

          From the Judgment and Order dated 26.8.94 of the Madhya Pradesh
     High Court in LP.A. Nos. 21 & 22 of 1994.

              Pramod Swamp, for the Appellants.
G
              Mrs. Kitty Kumaramanglam and S.K. Agnihotri, for the Respon-
     dents.

              The following Order of the Court was delivered :

H·            Leave granted.
                         S.JAYASWAL v. STATE                              529

       These appeals by special leave arise from the judgment dated A
26.8.1994 of the Division Bench of the High Court of Madhya Pradesh in
LP.A. Nos. 21 and 22 of 1994 titled State of M.P. and Others v. Santosh
Jaiswal and LP.A.No. 2J./94 titled State of M.P. and Others v. 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 B
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. 7 No. 21/94) for a period of nine months
and in Surendra Sliukla'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 years.                                                         c
      Shri Pramod Swamp, learned counsel for the appellants, contended
that it is only a licence and that, therefore, it is neither an instrument
compulsorily registrable 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 D
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 SLP nor have they placed any document before us. Under E
these circumstances, we would proceed on the premise that they are leases.
The contention raised in the High Court was that since profit a prendre is
not an immovable property and that, therefore, it is not compulsorily
registerable instrument. That contention was rejected by the High Court.

        Section 3 of the Transfer of Property Act defines "immovable proper-     F
ty". 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 G
         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 ~ave been executed on or after the
specified date. By virtue of Section 17(1)(c) leases of immovable property       H
    530                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A 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 Eastem Gangetic Fishennen Cooperative Society
    Ltd. v. 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,
B   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.

C         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 immoyable property.
D   Even though it is a profit a prendre, since it is 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 compulsory 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
E   registered under Section 17(1)(d) of the Indian Registration Act.

          Though Shri Pramod Swarup, leaned counsel for the appellant,
    sought reliance on the judgment of this Court in Ananda Behari and
    another v. The State of 01issa and Another, [1955) 2 SCR 919; The State of
F   West Bengal v. Shebaits of Jswar S1i Saradia Thakurani and Others, [1972)
    4 SCC 158, Board of Revenue and Others v.A.M. Ansari and Others, (1976)
    3 SCC 512 and State of Orissa and Others v. 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,
G   this Court considered that it would be a liecence 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
H
                         S.JAYASWAL v. STATE                             531

the High Court is right in its conclusion that it is a lease and being of the   A
value of more than Rs. 100, and upwards, it is 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 B
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 C
benefit to arise out of the land. Therefore, it is an instrument for the
purpose of stamp duty. Since the duration of lease in LP.A. No. 21/94 is
only nine months, it is not compulsorily registerable instrument by opera-
tion of Section 17(1)(c) of the Act. The Civil Appeal arising out of LP.A.
21/94 relating to Santosh J aiswal is, therefore, partly allowed. lt is an
instrument which requires to bear the appropriate stamp duty but is not a D
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 E
with stamp duty and registered.

       The appeals are accordingly disposed of. No costs.

R.P.                                                   Appeals disposed of.