Civil Appeal No94 of 1949
107 834 Appeal from a judgment and decree of the High Court of Judi cature at Patna in Appeal from Appellate Decree No 97 of 1946 Mannohar Lall and Mukherji JJ dated 23rd Decem ber 1947 confirming the judgment of the District Judge of Purulia in Appeal No 159 of 1944
SP Sinha P K Bose with him for the appel lant
NC Chatterjee and Panchanan Ghosh Chandra Narayan Naik with them for the respondent 1950
December 1
The Judgment of the Court was deliv ered by PATANJALI SASTRI J
This appeal arises out of a suit brought by the respondent in the court of the Subordinate Judge Dhanbad for recovery of 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 previ ous suit between the predecessors in interest of the par ties
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 stated
On 11th March 1921 one Kumar Krishna Prasad Singh hereinafter referred to as Kumar granted a perma nent lease of the right to the underground coal in 5800 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 8000 and royalty at the rate of 2a
per ton of coal raised subject to a minimum of Rs 8000 and for certain other cesses and interest
On 7th June 1921 Kumar executed another perma nent patta leasing the right to the coal in 500 bighas out of the 5800 bighas referred to above to one Prayngji Bal lavji Deoshi and his son Harakchand Deoshi hereinafter referred to as the Deoshis
By this document
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 1291 of 1921 in the Court of the Subordinate Judge of Dhanbad 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 cornpromised 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 193S in execution of a decree obtained against them and was purchased by the plaintiff who insti tuted the presnt suit on 3rd October 1942 claiming the royalty and cesses payable under the compromise decree for the period from Pous 1345 to Asadh 1349 BS 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 compro mise decree which are as follows  The plaintiffs the Singhs within two months from this date shall pay Rs 8000 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 theland covered by the patta dated 11th March 1921
The patta which defend ant No 3 executed in favour of the plaintiffs in respect of 5800 bighas of coal land in village Rahraband shall remain in force and the plaintiffs will get a decree of declara tion 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 836 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 plain tiffs commission at the rate of 2a
per ton on all sorts of coal instead of 2a
a ton as stated before in the patta of 5800 bighas of land settled with the plaintiffs
The plaintiffs shall pay to defendant No 3 in future the mini mum royalty of Rs 6000 instead of Rs 8000 as stipulated in the original patta of 11 th March 1921 and commission at the rate of la
a ton in place of 2a
a ton as stipulat ed in the patta of March 21 
Unless the plaintiffs pay to the defendant No 3 Rs 8000 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 posses sion of the land in dispute
The defendants 1 and 2 within one month from the date of payment of Rs 8000 as aforesaid to defendant No 3 shall execute a new Kabuliyat in favour of the plaintiff in respect of the modified terms stated above ie on the condition to pay commission at the rate of 2a
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 Rs 6000 instead of Rs 8000 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 parts 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 parts and kabuliyat and the plaintiffs in accordance with the terms of the rafanama shall pay to defendant No 3 Rs 6000 only as minimum royalty and commission at the rate of la
per ton with respect to 5800 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
 837 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
per ton and the minimum royalty was reduced from Rs 8000 to Rs 6000 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
per ton and tiffs was made payable to the Singhs
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 Rs 8000 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 503 bighas which evidently had not till then passed into their possession
Now sub section 1 of section 17 of the  enumerates five categories of documents of which regis tration 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 sec tion 2 however provided that nothing in clauses b and c of sub section 1applies 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  so as to exclude from the scope of the exception compromise decrees comprising immovable property other than that which is the subject matter of the suit
But 838 the amendment cannot affect the document here in question which came into existence in 1923
Before the amendment the clause was held to cover even compromise decrees comprising immovable property which was not the subject matter of the suit Vide Hemanta Kumari Debi vs Midnapur Zamindari Co  
That decision applies to the present case and obviates the objection that because the compromise in question covered also the remaining 5300 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 el
d of sub section 1
It is obvious that if the compromise decree fails within clause d of sub section 1 it would not be protected under clause vi of sub section 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
Mano har 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 ohserved also that so far as the defendants were con cerned their possession of the 500 bighas was not inter fered 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 Sitcram
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 1dof the 1 PC 839 
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 dof 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 theft 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 attern to them
On tiffs 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 5800 bighas to the Singhs by his patta dated 11th March 1921 and the compromise by providing that the Singhs should pay the reduced royalty of 1a
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 inter est in 5800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him
What 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 be tween 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 float the Singhs paid Rs 8000 to Kumar within 2 months 1 840 thereafter
As pointed out by the Judicial Committee in Hemanta Kumar 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 8000 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 under lease 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
We therefore agree with the conclusion of the High Court though on dif ferent grounds and dismiss the appeal with costs
Appeal dismisseel


Summary:
An agreement for a lease which a lease is by the Indian declared to include must be a document which effects an actual demise and operates as a lease
It must create present and immediate interest in land
Where a litigation between two persons A and B who claimed to be tenants under C was settled by a compromise decree the effect of which was to create a perpetual underlease between A and B which was to take effect only on condition that A paid Rs 8000 to C within a fixed period Held that such a contingent agreement was not a lease within el
a of section 17 t of the Indian  and even though it was covered by cl
b of the said sec tion it was exempt from registration under el
vi of subs
2 of section 17
Hemanta Kumari Debi vs Midnapur Zamindari Co I PC relied on