SANTOSHJAYASWAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Leave granted.

(2.) 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 v. Santosh Jaiswal and L.P.A. No. 21/94 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 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 lease was for more than two years.

(3.) 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 S.L.P. 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 profits a prendre is not an immovable property and that, therefore, it is not compulsorily registerable instrument. That contention was rejected by the High Court.