1. These are two civil revision applications from the judgment of the First Class Subordinate Judge at Karwar. Although the amount involved is small the questions involved are somewhat important. The facts are that plaintiff's predecessor in title granted by a mulgeni lease to the defendants' family certain lands in 1842. No Registration Act was then in force and the document was therefore not registered. The original document appears to have been misplaced but the predecessors of the defendant were paying rent. There arose a dispute in 1919 about the rent and suit No. 209 of 1919 was filed in the First Class Subordinate Judge's Court at Karwar. The defendants disputed the terms of the tenancy and their liability to pay the rent as claimed. Pending this suit the parties compromised the dispute. That compromise was recorded and a decree followed under Order XXIII, Rule 3. The terms of that decree are material. The relevant portion runs as follows :
As regards the mulgeni in suit defendant No. 1 Sheshgiri Vasudevrao Nad-karni should go on paying to the plaintiff Samsthan, for 27 years from the current year 2 khandis and 17 kolgas of rice of good quality every year before Magh Vadya 30th according to the conditions of the said mulgeni. Thereafter from the 28th year...defendant No. 1 should go on paying from generation to generation to the plaintiff Samsthan every year at the rate of 41/2 khandis of good rice by Shikka measure ...and 100 cocoanuts before Magh Vadya 30th every year...The defendants alone should go on paying directly and peacefully, to the Government according to their respective rights, the amount of present assessment and local fund of the said lands and also the amount of Rajartha (money due to the King) by whatever amount it be increased in future. In case it is increased the plaintiff Samsthan is not liable for the same. In case the Rajartha is decreased defendants alone are entitled to and liable for the same according to their respective rights,..Rajartha means the amount of assessment and local fund according to the present practice and all taxes that may be levied on the said lands hereafter. Subject to these conditions, the mulgeni deed in suit is kept intact (confirmed).
The decree is not registered. In 1936 the plaintiff brought a suit to recover Rs. 13-11-6 being the amount paid by the plaintiff as a punitive tax to Government. The claim was based on the decree which made the defendants liable for taxes imposed thereafter. In the trial Court an objection was raised to the decree being admitted as an exhibit. The plaintiff's contention was that it was admissible on the doctrine of part performance under Section 53A of the Transfer of Property Act. It was there conceded that the decree required registration. The trial Court upheld the plaintiff's contention. When the matter was brought here before me it was contended by the applicants that the trial Court was wrong in admitting the decree under Section 53A of the Transfer of Property Act. On behalf of the opponent (original plaintiff) it was stated that the admission in the lower Court that the decree required registration under the Registration Act was erroneously made and was withdrawn. This being a point of law there was no objection to that.
2. In my opinion the decision of the trial Court that the decree was admissible because of Section 53A of the Transfer of Property Act is unsound. The trial Court has based its decision on Suleman v. Patell : AIR1933Bom381 . It is however held by the Judicial Committee of the Privy Council that Section 53A of the Transfer of Property Act serves as a defence and cannot be made a ground of attack. In Sir Din-shah Mulla's conmmentary on the Transfer of Property Act (2nd ed.) at p. 262 it is stated as follows :
The right conferred by this Section is a right only available to a defendant to protect his possession. It is limited to cases where the transferee had taken possession and against whom the transferor is debarred from enforcing; any right other than that expressly provided by the contract.
Commenting on Suleman v. Patell it is stated as follows (p. 262):-
In this case part performance was used not as a ground of defence but as a ground of attack. The cardinal principle was overlooked, viz., that part performance must be the act of the person seeking to avail himself of the equity and that acts of the person sought to be charged are of no avail.
In a very recent judgment delivered by the Judicial Committee of the Privy Council in Probodh Kumar Dad v. Dantmara Tea Co. Ltd. (1939) 42 Bom. L.R. 199 (Since reported) (which is still unreported) it is observed as follows (p. 202) :-
In their Lordships' opinion the amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in posesssion under an unregistered contract of sale. Their Lordships agree with the view expressed by Mr. Justice Mitter in the High Court that 'the right conferred by Section 53A is a right available only to the defendant to protect his possession.' They note that this was also the view of their late distinguished colleague, Sir: Dinshah Mulla, as stated in the second edition of his treatise on the Transfer of Property Act at p. 262. The Section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious inroad on the whole scheme of the Transfer of Property Act.
These observations clearly show therefore that the plaintiff could not have used as a ground of attack the doctrine of part performance and got the decree admitted in evidence because of that Section . If the decision of the trial Court is therefore considered from that point of view alone, it will have to be reversed.
3. The second point urged on behalf of the plaintiff that the decree does not require registration at all however appears sound. In this connection it is important to bear in mind the important provisions of Section 17 of the Indian Registration Act. It enumerates in cls. (b) and (c) non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property or acknowledge the receipt or payment of any consideration on account of the sale. Section 17 (1)(d) runs in these terms :
leases of immovable property from year to year, or for any term exceeding one year, or reserving yearly rent.
Sub-clause (2) runs as follows :
Nothing in Clauses (6) and (c) of Sub-section (1) applies to. .. (vi) Any decree or order of a Court
4. As I have pointed out, the original mulgeni lease was passed in 1842 and did not require registration. The decree in question if it fell within Section 17 (2)(b)(c) would be exempt from registration by reason of Section 17(2)(vi). If, on the other hand, the decree was covered by Section 17(7)(d), that is if it was held td be a lease of an immovable property from year to year or for a term exceeding a year reserving a yearly rent, the fact that it is embodied in a decree will not save it from the necessity of registration.
5. The learned advocate for the opponents relied on Jayanal Abedin v. Hyderabi Khan Pani I.L.R. (1927) Cal. 701 which was followed in Sahila Bala v. Ganganarayan A.I.R. (19330) Pat. 457 and also on Jogesh Chandra Mukerjee v. Rai Bekari Lal Mitra Bahadur (1933) 59 C.L.J. 328 and Kailas Chandra v. Madam Mohan 42 C.W.N. 107 in support of his contention that where there is a variation in the terms of the lease about the rent the document containing those terms does not require registration as a new lease. A decision that it requires registration because it is covered by Section 17 (1)(b)(c) cannot help the defendant. In Lalit Mohan Ghosh v. Gopali Chuck Coal Company, Ld. I.L.R. (1911) Cal. 284 it was held that a document which varies the essential terms of an existing lease) such as the amount of rent, the time of payment thereof and the conesquences of default, would amount to a new lease and required registration. On the other hand in Doe v. Geekie (1844) 5 Q.B. 841 Crowley v. Vltty (1852) 7 Exch. 319 and Inchiquin v. Lyons (1887) 20 L.R. Ir. 474 it has been held that while a tenant from year to year is in possession of the lands under an agreement reserving a certain rent, and he agrees to pay an increased or reduced rent, this will not necessarily have the effect of creating a new tenancy. It was pointed out in Jayanal Abedin v. Hyderali Khan Pani I.L.R. (1927) Cal. 701 that the question of variation of the rent did not affect the question of registration, because though it may not in itself amount to a lease yet it may require registration under the other sub-clauses of Section 17(1).
6. The question therefore is whether the decree in this case creates a new lease or merely alters the amount of the rent provided in the previous lease. Turning to the decree it is evident that it confirms the mulgeni lease which was in existence and confirms the possession of the defendants as tenants. For the first twenty-seven years a stipulated rent as stated therein has to be paid and from the 28th year the rent is to be paid on an altered basis. There is a further stipulation that the tenant is to pay the Government revenue and local fund tax and whatever further tax may be imposed in future if the same is due to Government. At the end of the clause it is further reiterated that subject to these conditions, the mulgeni lease is kept intact. The only contention urged here is that the stipulation about payment of the further tax to Government, if any, alters the terms of the lease. But it must be remembered that the alteration is only in connection with the rent. The scheme is that in addition to the stipulated rent (which is varied) the tenant agreed to pay the Government revenue, local fund tax and any other Government tax which may be imposed. This is not a condition varying any other terms of the lease but only varying the amount of the rent payable by the tenants. Under the mulgeni lease it is not disputed that the liability to pay Government revenue was upon the tenants. The variation is open to the construction that the intention was merely to amplify this provision and nothing more. Whatever be the intention, the effect is that the liability of the tenant to pay the stipulated rent to the landlord is coupled with a stated liability to pay the taxes. T am unable to read this portion as amounting to the creation of a new lease. The case therefore is not covered by Section 17(1)(d) of the Indian Registration Act and the conclusion of the lower Court that the decree is admissible in evidence is upheld but on the abovementioned ground. As the decision of the lower Court is upheld on a ground on which there was an admission on behalf of the plaintiff (which is now withdrawn), I think there should be no order as to costs of these applications. The rule in both the applications is discharged.