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Santosh Jayaswal Versus State of M.P. and Others

1995 (9) TMI 387 - SUPREME COURT

Civil Appeal No. 8429 of 1995 - Dated:- 11-9-1995 - RAMASWAMY, K. AND HANSARIA B.L. JJ. JUDGMENT: Leave granted. 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 Vs. Santosh Jaiswal and L.P.A. No. 21/94 titled State of M.P. and others vs. Surendra Shukla. The question canvassed before the Division Bench was whether the right to catch fish in the tank gra .....

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han two year. 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 grant .....

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ntention was rejected by the High Court. Section 3 of the Transfer of Property Act defines "immovable property". It does not include standing timber, growing crop or grass. Clause (26) of Section 3 of the General Clauses Act is equivalent to Section 2(18) of the M. P. General Clause Act which defines immovable property thus: "2(18) "Immovable property" included land, benefits, to arise out of land and things attached to the earth, or permanently fastened to anything atta .....

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ern Gangetic Fishermen Cooperative Society Ltd. vs. Sipahi Singh and others [(1977) 4 SCC 145] and held that if the profit a prendre is a tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds ₹ 100/-. If it is intangible, the sale is required by Section 54 of the Transfer of Property Act, 1882, to be effected by a registered instrument, whatever its value. Therefore, in either situation the grant of the profit a prendre has to be by m .....

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it is an immovable property. If its value is more than ₹ 100/- or the lease is on year to year basis, it is a compulsorily registerable instrument under Section 17(1)(c) of the Indian Registration Act. It is an instrument under Article 35(a) of Schedule 1-A Clauses (1) to (3) of the Stamp Act. Therefore, it requires to be engrossed with required stamp duty and registered under Section 17(1)(d) of the Indian Registration Act. Though Shri Pramod Swarup, learned counsel for the appellant, so .....

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ight to catch fish is a lease or a licence. In view of the language of documents in those cases, this Court considered that it would be a licence but not a lease. Since the document has not been placed before us, we cannot decipher whether it is a licence or a lease. Since the controversy was not put in issue before the Division Bench, we proceeded on the premise that it is a lease. Under these circumstances, we are of the considered view that the Division Bench of the High Court is right in its .....

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