1. This is an appeal by defendant 3 who alone contested the suit in the Courts below. The suit was for arrears of rent, and a two-fold defence was taken: first, a denial of the relationship of landlord and tenant, and secondly, that the rate of rent was not as the plaintiffs had claimed. Both the pleas were negatived, and a decree was passed at the rate claimed, which was Re. 1 per keor per year. The only question raised in this appeal is as to the rate of rent. It appears that the tenancy was originally created by a kabuliyat for a term of one year in which the rent stipulated was at the rate of 8 annas per keor. The defendants held over on the expiry of the term, and the plaintiffs thereafter sued them for rent. This suit was disposed of in terms of a compromise. By the solenama the rent was fixed at Re. 1 per keor, and it was further provided that there was to be no enhancement for 15 years. It is on this solenama which was made a part of the decree that the plaintiffs base their claim in the present suit. The solenama was not registered, and so defendant 3 contended it was not admissible in evidence. His case was that it was either a new lease for a term exceeding one year, or a document varying the rent payable under the previous lease which was a registered instrument, and in either view, it was said, the document required registration.
2. The learned Additional District Judge seemed to think that the solenama was not a new lease, but a variation of the old lease. On this footing, he was of opinion that as the old lease was a registered document, the case might be held to come within the Full Bench ruling in Lalit Mohan Ghosh v. Gopali Chauck Coal Co., Ltd. ('11) 39 Cal. 284, which laid down that a document embodying an agreement for variation of rent under a pre-existing lease, registered, as required by Section 17, Sub-section (1), Clause (d), Registration Act, also required registration. The Pull Bench approved the earlier judgment of this Court in Durga Prasad Singh v. Rajendra Narain Bagehi ('10) 37 Cal. 293, which was subsequently affirmed on appeal on this point by the Judicial Committee in Durga Prasad v. Rajendra. Narayan.40 I. A. 223, at p. 230. The learned Judge however did not give effect to this view, and sought, on the other hand, to avoid the effect of the Full Bench decision by treating the solenama as a document under Clause (b) of Sub-section (1), that is to say, as a document creating or limiting an interest in immovable property of the value of upwards of Rs. 100, and thus bringing it within the exception enacted in Clause (vi) of Sub-section (2), which exempts such a document from compulsory registration, if incorporated in a decree or Order of a Court.
3. I am not sure that the Full Bench decision would at all apply to this case. The Full Bench judgment as well as that in the earlier ease which it approves proceeds on the footing that the previous lease must not only be registered in point of fact, but be also compulsorily registrable under Section 17, Registration Act. That is not the case here. The old lease had no doubt been registered, but as it was only for a term of one year and did not reserve a yearly rent, it could not be said that the document required registration. This explains why Mr. Sen appearing on behalf of the appellant did not press this aspect of the matter before me. Mr. Sen's contention was that the solenama was a lease under Clause (d) of Sub-section (1) of Section 17, and that therefore it could not come within the exception in Clause (vi) of Sub-section (2). It was pointed out, and rightly so, that sub.Section (2) by its opening words was expressly limited to documents falling within the categories mentioned in Clause (b) and (c), and not any other Clause of Sub-section (1), and in support of this construction, he referred to a number of cases, such as Rajani Kanta v. Raj Kumari Dassi : AIR1927Cal913 Nazar Ali v. Indra Kumar : AIR1929Cal462 , and Atul Krishna v. Zahed Mondal : AIR1941Cal102 , Mr. Das on behalf of the respondents did not contest the proposition that if the solenama was a lease under Clause (d) of Sub-section. (1), it could not attract the operation of Clause (vi) of Sub-section (2), so as to be exempt from registration on the ground that it was embodied in a decree, but relying on Jogesh Chandra v. Behari Lal Mitra : AIR1934Cal799 , he stoutly maintained that it was merely a recognition of a pre-existing tenancy, and did not amount to a lease at all. It was in every sense a document of the class referred to in Clause (b) of Sub-section (1), a non-testamentary instrument purporting to create or limit an interest in immovable property, and as such, it clearly came within the exception contained in Clause (vi) of Sub-section (2).
4. I think that on the facts it may easily be taken for granted that if the solenama is a document of the kind mentioned in Clause (b), it satisfies the condition therein laid down as to the value of the interest created thereby, and similarly, that if it is a lease, it is one fulfilling the requirement of Clause (d) as regards the term and the rent reserved. This being the position, an important question arises which does not seem to have been fully appreciated in the arguments advanced on either side. As the case was presented on behalf of the respective parties, it was made to appear as if it lay between two alternatives, either that the solenama was a document under Clause (b), or that it was a lease under Clause (d), and that by virtue of the provision in Clause (vi) of Sub-section (2), it would be exempt from registration in one case, but not in the other. The possibility that the document might be regarded as equally coming under either Clause was wholly ignored, and yet it seems to me that this is a viewpoint which should have a material bearing on the question as to whether the exemption under Sub-section (2) would apply. So far as Sub-section (1) is concerned, it would, of course make no difference under which category the document might be deemed to fall.
5. Sub-section (1) of Section 17 contains several Clause (a) to (e), each specifying a distinct category of documents which are made compul-sorily registrable under its provisions. Of these, Clause (a) refers to instruments of gift of immovable property, and Clause (d) to leases of such property of a certain description, while Clause (b) deals generally with non-testamentary instruments purporting to affect immovable e property. In the case of gifts, it is recognised that they are documents of the kind mentioned in Clause (b),as this Clause expressly speaks of 'other non-testamentary instruments.' In the case of leases, there is no such express indication but Clause (b) is in such wide terms that in my opinion leases would also easily come within its scope. Clause (b) no doubt sets a limit as to the value of the interest dealt with by the instrument referred to therein, and a gift or a lease, if it is to come under this Clause, must necessarily therefore satisfy this limit.
6. The question arises in these circumstances whether for the purposes of Sub-section (2) of Section 17, the solenama here, constituting as it does a lease under Clause (d) of Sub-section (1), may not yet be brought under Clause (b), seeing that both as regards nature and value it also answers the description of a document specified in the last mentioned Clause. It may doubtless be argued that as gifts and leases have been specifically mentioned in distinct Clauses, they are not to be classed as other non. testamentary instruments which form another distinct head, and in no circumstances therefore can they attract the operation of Sub-section (2), which in terms enacts an exception to Clause (b) and (c) only, and not to Clause (a) or Clause (d). On the other hand, it may well be maintained that the object of separate classification of gifts and leases under Clause (a) and (d) is not to exclude them from the scope of Clause (b) wholly, but only to bring under the provisions of Sub-section (1) a larger number of such documents than would be admissible by virtue of Clause (b) alone. Clause (b) requires that in Order that a document affecting an interest in immovable property as stated therein may be compulsorily registrable, such interest must be of the value of Rs. 100 or upwards, and it is certainly arguable that only because in the case of gifts and leases this requirement is dispensed with, has the Legislature found it necessary to make separate provision for these categories of documents. In the case of leases, a different criterion is in fact laid down to make such a document compulsorily registrable, having reference only to the duration of the term and the rent reserved, and irrespective of the value of the interest in the property created by the demise. To some extent, therefore, on this view, Clause (a) or Clause (d) is bound to overlap Clause (b), and in cases where there is such overlapping, there seems to be no reason why it should not be possible to treat the document as coming equally under Clause (b) and under Clause (a) or Clause (d), as the case may be. In none of the cases to which my attention has been drawn, does the matter appear to have been considered from this point of view, and yet this seems to me to be a point of substance. As at present advised, confining myself to the case of a lease, the view I am inclined to take is that where a lease requires registration solely under Clause (d), because it may not be brought within the terms of Clause (b), it will not attract the benefit of Clause (vi) of Sub-section (2). Where however a lease may be regard, ed as an instrument under Clause (b) as well as one under Clause (d), I do not see why the exception should not apply. In the present case, therefore, as it may be assumed that the interest created by the solenama was of the required value, it should be possible to bring the document within the provisions of Sub-section (2). As the solenama was embodied in a decree of a Court, it must follow that it was exempted from registration under Clause (vi) of that Sub-section, and the plaintiffs will accordingly be entitled to rely on it in support of their claim. The result is that the appeal fails, and is dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is granted.
7. [The Letters Patent appeal was heard by Nasim Ali and Pal JJ. and the following judgment was delivered:]
8. This appeal arises out of a suit to recover arrears of rent. The dispute between the parties is about the rate of rent annually payable. The plaintiffs' case is that the rent payable is Re. 1 per kear while the case of the defendants is that the rent payable is eight annas per kear. The learned Judge has accepted the plaintiffs' case. The plaintiffs' case entirely depends upon a compromise decree in a previous rent suit. By this compromise decree a lease was created in favour of the defendant for 15 years at an annual rent of Re. 1 per kear. The compromise petition or decree was not registered though it was compulsorily registerable under Section 17 (d), Registration Act. It is not protected from registration under Section 17 (2) (vi). Mr. Das appearing on behalf of the respondents, however, contended that this compromise may come under Section 17 (b) and consequently, Section 17 (2) (vi) would be attracted to this case. We are unable to accept this contention. Clause (b) refers to certain non-testamentary instruments while Clause (d) specifically refers to leases. The plaintiffs want to rely upon this as a lease in the present case. Consequently, the compromise is hit by Section 17 (d), Registration Act. The result therefore is that this appeal is allowed. The plaintiffs' suit is decreed at the rate of eight annas per kear for the period in suit with usual damages. There will be no Order for costs in this Court.
9. On hearing the matter further, we are of opinion that there should be no Order for costs in the second appeal and in the Letters Patent Appeal, and also that the orders for costs of the Courts below, namely, the Court of first instance and the first appellate Court should stand. We Order accordingly.