SUMATIBAI WAMAN KIRTIKAR Vs. ANANT BALKRISHNA SHIRGAONKAR

JUDGEMENT

(1.) THE question that arises for consideration in this Letters Patent appeal is whether a compromise decree which operates as a lease requires registration.

(2.) THE plaintiff in the suit from which this appeal arises executed a lease in favour of the defendant on April 1, 1943, which expired by efflux of time on March 31, 1944. As the defendant did not hand over possession, the plaintiff filed a suit for ejectment on April 16, 1944, On April 16, 1945, a consent decree was arrived at between the parties and it is this decree which calls for an interpretation at our hands. By this decree the defendant agreed to continue to occupy the property which had been leased to him and the plaintiff agreed that the defendant should continue to occupy the property from April 1, 1944 to June 30, 1947. THE defendant further agreed to give vacant possession to the plaintiff of the property in suit on June 30, 1947, and the defendant agreed that he would pay to the plaintiff the rent of the suit property in the manner laid down in the decree. As possession was not handed over by the defendant on June 30, 1947, the plaintiff filed a darkhast to execute the decree and obtained possession under it. THE executing Court ordered execution to issue. Prom that order there was an appeal preferred to the District Court and the District Court took the view that after June 30, 1947, the judgment-debtor was protected by Act LVII of 1947 and therefore set aside the order of the executing Court. THE plaintiff came in second appeal to this Court and Mr. Justice Jahagirdar held that the decree was not capable of execution because it was not registered. He therefore upheld the order of the District Court, but on a different ground. He then gave a certificate for a Letters Patent appeal, and the appeal now comes on before us for decision.

(3.) THERE seems to be no reason in principle why a lease cannot be made by parties arriving at a compromise of a suit and giving effect to that compromise in a decree of a Court. If two parties agree that one will give a lease of a land to the other and if they want that agreement to be embodied in the decree of a Court, that decree would operate as a lease as much as an instrument executed by two parties making a lease as provided by Section 107 of the Transfer of Property Act, and therefore we see no reason whatever why if this document can be read as constituting a lease there is anything in law to preclude the Court by embodying it in a decree which it passes as a result of a compromise. Looking to the terms of the document itself there can be no doubt that it is a lease and it does create the relationship of landlord and tenant between the judgment-creditor and the judgment-debtor. It is not a case of the judgment-debtor being permitted to use and occupy the land for a certain period and be required to pay compensation for that use and occupation. It expressly sets out the rent that has got to be paid by the tenant, it fixes the term of the lease, and it requires the tenant to hand over possession at the end of that term. The use of the expression "rent" is very significant and we cannot accept Mr. Dharap's contention that "rent" must be read in the sense of compensation rather than in its strict technical sense. The distinction between rent and compensation is well known and well understood, and if the parties deliberately use the expression "rent" and when we find the other ingredients of a lease present, there is no reason why we should take the view that what the parties agreed upon was not the making of a lease but bringing into existence some other document. THERE is a further provision in the decree which also goes to show that the document was intended to operate as a lease. On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due; it did not entitle the judgment-creditor to take possession of the land on default of. payment of rent.