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.) A very ingenious argument has been advanced before as by Mr. Dharap. According to Mr. Dharap, the provisions contained in the consent decree do not and cannot constitute a lease because they do not conform to the provisions of Section 107 of the Transfer of Property Act. That section lays down the mode of making leases mentioned therein and it provides that "a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument," It further provides that "where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee." Therefore, argues Mr. Dharap, that as a decree is not an instrument which is executed by both the lessor and the lessee, it is not a lease contemplated by the Transfer of Property Act and therefore it is not compulsorily registrable, Mr. Dharap wants us to read the document as an order of the Court resulting from a compromise whereby the judgment-debtor is permitted to continue in possession of the property in suit till a fixed date and thereafter to hand over possession to the judgment-creditor, and Mr. Dharap says that this is a decree which he is seeking to execute and there is nothing in law to prevent him from executing such a decree.