RENT LAW

Lease and Licence

by C.F. Alvares,
Advocate, Margao, Goa
Cite as : (1972) 2 SCC (Jour) 1

The burning question before us at present appears to be the distinction

between a lease and a licence. This delicate question has been brought
before the Supreme Court more than once, which fact in itself indicates
that we are still wanting a clear-cut distinction between the two terms,
lest we repeat our past errors.
The most recent decision which I have at hand is the one in Sohan Lal
Naraindas v. Laxmidas Raghunath Gadit, reported in (1971) 1
SCC 276: (1971) 2 SCJ 583: (1972) Bom LR 144 (SC), where Their
Lordships of the Supreme Court held that the crucial test is the intention
of the parties, i.e. whether they intended to create a lease or a licence,
and that the test of exclusive possession, though not decisive is of
significance. Such reasoning was expressed earlier in Ramamurthy
Subudhy v. Gopinath (AIR 1968 SC 919) and in M.N. Clubwala (Mrs) v.
Fida Hussain (AIR 1965 SC 610) and also in Associated Hotels of India
Limited v. R.N. Kapoor (AIR 1959 SC 1262), where Their Lordships held
that the document by itself could not be a deciding factor whether a
particular transaction was a lease or a licence.
THE DISTINCTION
Section 105 of the Transfer of Property Act, reads:
"A lease of immovable property is a transfer of a right to enjoy such
property, made for a certain time, express or implied, or in perpetuity,
in consideration of a price paid or promised or of money, a share of
crops, service or any other thing of value to be rendered periodically, or
on specified occasions to the transferor by the transferee, who accepts
the transfer on such terms.
The transferor is called the lessor, the transfree is called the lessee, the
price is called the premium, and the money, share, service or any other
thing to be so rendered is called the rent."
Section 52 of the Easements Act reads:
"Where one person grants to another or to a definite number of other
persons a right to do or continue to do, in or upon the immovable
property of the grantor, something which would, in the absence of such
right be unlawful, and such right does not amount to an easement or an
interest in the property, the right is called a licence."
If we focus our attention only upon the question of rights in the above
two definitions, we find that in both cases there is a transfer of a right. It
may be noted that in a lease the Right consists in enjoying such
property transferred, and so also in a licence the Right consists in doing
something in or upon the immovable property of the Licensor, though
without the creation of an interest in the property.
Although it is not clearly stated that a lease creates an interest in the
property, inasmuch as the opposite is stated in case of a licence, yet by
judicial dicta we have come to believe that a lease creates an interest in
the property merely to highlight a contradistinction between a lease and
a licence. We have, therefore, imputed such creation of a right or
interest in the property, not due to the existence of a positive statement
to that effect in the definition of a lease, but merely because of the
statement of its non-creation in case of a licence.
This imputation of the creation of a right in the property in case of
lease, is in reality a high overtone because all that follows from the
definition is that the transfer is solely of 'a right to enjoy' which is
equivalent to the 'right to do so, in or upon the immovable property,' as
stated in the definition of a licence.
Considering that the Transfer of Property Act and the Indian Easements
Act, were both passed in the same year, 1882, obviously the concept of
a Right would not have been different. We cannot conceive that a lease
gives a right to enjoy the property in any manner the transferee feels
best, as against a licensee who could have his rights directed in a
particular manner as per the terms of the grant. In fact, we are quite
settled on the principle that if a tenant does any
alteration/modification/improvement, etc., he does so at his own risk,
since he does not have any property rights over the subject-matter of
the demise, and he would not be allowed to contend that he had rights
in the property due to which he did the alteration/modification. As long
as he keeps on paying the rent, the dichotomy of owner and tenant
shall subsist and consequently his interest in the property is in no way
better or, is as precarious as that of the licensee.
As against this, we find that Section 60(b) of the Easements Act clearly
states that a licence becomes irrevocable when "the licensee, acting
upon the licence has executed a work of permanent character and
incurred expenses in the execution", which goes to show that a licensee
can create rights in the property, or, for every practical effect, he is on a
safer position than a tenant, whose tenancy could always be terminated
with an appropriate notice as provided in Section 106 of the Transfer of
Property Act.
No doubt, we can still argue that the security in tenure of the licensee
arises not by virtue of the creation of "an interest in the property" but in
the creation of a right over the property, i.e. his rights are purely above
the surface of the land, as against the rights of the owner which lie from
the surface to below.
But if we adopt this argument, we reach a paradoxical situation. We
conceive that the interests of the licensee restricts only to the structure
above the surface. Then, does the structure have no foundation? Aren't
these foundations embedded in the soil? Is this not immovable
property? Does not this structure with its foundation constitutes an
integral whole? Can we then conceive immovable property as layers of
movable property put together? The obvious answer is "NO". The
conclusion is that a licensee can acquire interest in the property if he,
under the licence, puts up a work of permanent character and incurs
expenditure.
The statement, therefore, that a lease alone creates interest in the land
and that the licence does not so create, is definitely a high overtone due
to the laying of too great an emphasis on the words "does not amount
to an easement or an interest in the property" as found in the definition
of a licence, as against its absence in the definition of a lease.
A DEPARTURE
It is elementary to state that a definition, in order to conform to the
rules of logic, must be "per genus et diferentium". If we turn to the
definition of the licence as per Section 52 of the Easements Act it surely
has a "genus" and a "diferentium"; the genus is a wider category to
which it belongs, viz. the right which is acquired under the grant and the
diferentium is the right which "does not amount to an easement or an
interest in the property". Such diferentium, no doubt, has been used to
distinguish a licence from an easement, considering that an easement,
as defined in Section 4 of the Easements Act clearly indicates that it is a
right which creates an interest over the property of another. The
qualification that a licence does not create an interest in the property
therefore, is used in contradistinction or as a diferentium to the
definition of an Easement. When this diferentium or contradistinction is
dislodged from the context of the Easements Act and is used to
contradistinguish or differentiate from a lease, it obviously loses all its
sense and causes all the confusion.
With due respect to all the established authority therefore, I beg to
submit that the theory which tries to create a dichotomy between a
lease and a licence on the basis that the former creates an interest in
the property and that the latter does not, is surely untenable. The
respective definition of lease and licence have their proper meanings
within the context of their respective acts, viz. the Transfer of Property
Act and Easements Act. But when we try to establish a universality to
these definitions and set one against the other by extricating them from
their respective contexts, we find that we reach paradoxical situations
and get into a wild-goose chase.
If this be not so, let us test the orthodox theory once again. When
highlighting the distinction between Lease and Licence, it is noted in
Mulla's Commentaries on the Transfer of Property Act (5th Edn., 1966 at
p. 659) that a licence "does not entitle the Licensee to sue a stranger in
his own name" apparently under the orthodox notion that a licensee has
no interest in the property. If this statement be true, does it mean that a
licensee cannot evict a trespasser? Can he not maintain a suit based on
his possessory right? Surely he can. How can we then accept the
statement as given in Mulla?
One may still argue that to file a suit based on the possessory right, is a
right which a possessor/licensee has over the property and not in the
property. My comment to this is that such reasoning is a sheer
absurdity. I concede that there can be possession of "incorporeal
rights", but considering that in licences, we are dealing only with
tangible property it is obvious that our possessory right is not in the
abstract but over a tangible property. Such possession therefore
crystallises upon the "corpus"/subject-matter, i.e. the property licensed
and hence the argument that one right emanates from over the
property and not from in the property, is a sheer sophistry.
AN ASSESSMENT
In the decision in Sohan Lal Naraindas v. Laxmidas Raghunath Gadit
reported in (1971) 1 SCC 276: (1971) 2 SCJ 583: 1972 Bom LR 144 (SC),
Their Lordships of the Supreme Court write:
"Intention of the parties to an instrument must be gathered from the
terms of the agreement examined in the light of the surrounding
circumstances. The description given by the parties may be evidence of
their intentions but is not decisive. Mere use of the words appropriate to
the creation of a lease will not preclude the agreement operating as a
licence. A recital that the agreement does not create a tenancy is also
not decisive. The crucial test in each case is whether the instrument is
intended to create or not to create an interest in the property the
subject-matter of the agreement. If it is in fact intended to create an
interest in the property, it is a lease. If it does not it is a licence. In
determining whether an agreement creates a lease or a licence the test
of exclusive possession though not decisive is of significance."
Let us try to study the above passage by splitting up into three parts as
follows:
First Part.—"Intention of the parties to an instrument must be gathered
from the terms of the agreement examined in light of surrounding
circumstances. The description given by the parties may be evidence of
their intention but is not decisive. Mere use of the words appropriate to
the creation of the lease will not preclude the agreement operating as a
licence. A recital that the agreement does not create a tenancy is also
not decisive."
It follows from the above that intention overrides the written document;
that even though the document is styled as a lease, yet it may be a
licence; that even an averment that the document is not a lease, is
inadequate. In short, the Supreme Court feels that we should allow the
parties to retract from their written commitment by alleging some
intentions, which would suit best their conveniences at the time of
litigation.
And with such rationale as adopted by the Supreme Court, the reader is
preplexed as to what is the fate of Section 92 of the Evidence Act which
excludes evidence of any oral agreement or statement for the purpose
of contradicting, varying, adding or subtracting from the written terms
of the contract. Does not the rationale of the Supreme Court violate the
provisions of Section 92 of the Evidence Act? The obvious answer is
'yes'.
Section 35 of the Stamp Act, clearly states that instruments not duly
stamped are inadmissible in evidence. No doubt, this provision is more
in the nature of hindrance to the plaintiff than to the defendant,
because it is the plaintiff who will place reliance on it, whereas the
defendant will be interested only in destroying it. But it is possible to
conceive (as it often happens) that the Plaintiff is interested in trying to
class the document as a lease, notwithstanding that it is written as a
licence, and institute eviction proceedings in the Rent Tribunal so as to
pay a lower Court Fee, as the Rent Tribunals have a fixed Court Fee
which is lower than the regular Court Fee prescribed for recovering
possession of immovable properties.
Thus, if the above ratio is to be of a universal application, i.e. both to
the plaintiff and the defendant, we reach the conclusion that its effect is
only to leave the doors wide open for the plaintiff to violate this Section
35 of the Stamp Act.
Similarly, Section 17(1) of the Registration Act makes leases from year
to year or from periods exceeding one year, compulsorily registerable;
and Section 49(c) of the Registration Act, categorically states that a
document not registered as per the requirements of Section 17, shall
not be received in evidence.
How, then will a party be allowed to class a document differently when
he has clearly violated the provisions of the Registration Act? How, will
then an unregistered instrument creating a lease (since a licence is not
required to be registered) be accepted in evidence? If the instrument
creating a licence is registered, it is all the worse. How will the party be
allowed to retract from his admission made before the registering
authority?
From the above discussion, I beg to submit that the rationale adopted
by Their Lordships of the Supreme Court is far from satisfactory. And
with this, I shall pass on to examine the second part of the passage
reproduced above.
Second Part.—"The crucial test in each case is whether the instrument
is intended to create or not to create an interest in the property the
subject-matter of the agreement. If it is in fact intended to create an
interest in the property, it is a lease. If it does not, it is a licence."
I think that I need not comment at length on this passage as I have
already dealt with it above, under the sub-heading "A DEPARTURE".
To put it shortly, I beg to stress that the attempt in trying to establish a
dichotomy on the basis of the interest created in the property is a
monument of misdirected energy. As I noted above, the fact that the
definition of the licence states that it does not create an interest in the
property, has to be understood in its proper context, viz. when put in
contrast to an easement and not when it is put in contrast with a lease.
The logical definition of lease and licence lose all their meaning when
withdrawn from their contexts of their respective Acts.
I, therefore, beg to submit that this passage loses all its force.
Third Part.—"In determining whether an agreement creates a lease or a
licence the test of exclusive possession though not decisive is of
significance."
Let us conceive that I give my rooms on a licence to someone. Does it
mean that I can invade into his privacy? Does it mean that I can treat
these rooms as a waiting room in Railway Station? What then is the
good in saying that I still retain possession over these rooms and that
my licensee has no exclusive possession? Will the mere fact of my
keeping some items of furniture (say a bed-cum-sofa, as it is usually
done in Bombay) give me joint possession over the room? I may at the
most claim possession over these items of furniture, but surely it would
be absurd to say that my licensee did not have exclusive possession.
If one is not prepared to accept this reasoning, then I may ask:
What about the electric fittings installed by a landlord in the premises
leased by him to his tenant?
Or think of a lease agreement where the landlord stipulates a clause to
enter and inspect the premises at any time. Does it abridge the
exclusive possession of the tenant? No doubt, the owner, whether lessor
or licensor always retains constructive possession. But what we are
concerned, is actual physical possession while establishing
exclusiveness. And we find that exclusive possession exists both in
cases of leases as well as in case of licences.
My submission, therefore, is, that exclusive possession is no test at all.
THE CRUCIAL TEST
With due respect to all the authorities, I beg to submit that if we are to
follow the law strictly, we would not be allowed to look beyond the
document. We shall have to take the document, either as a lease or a
licence, on its face value and that would be in consonance with Section
92 of the Evidence Act and Section 35 of the Stamp Act and Section
49(c) of the Registration Act. Besides, it would be in consonance with
the principle of 'Estoppel by Deed' as envisaged in Section 115 of the
Evidence Act, which principle rests upon a fundamental rule that "No
man shall be allowed to dispute his own solemn Deed", as rightly
expressed by Lord Mansfield.
How would the Court feel if a person who executes a sale deed, on
finding that the price of the property sold, has shot up, all of a sudden
turns the corner and affirms that he really intended to execute a
mortgage by conditional sale?
In a very recent decision from Bombay, viz. Belapur Company Limited v.
Maharashtra State Farming Corporation, reported in 1972 Bom LR 246,
His Lordship Justice Vimadalal, has considered very extensively the
ambit of proviso (6) to Section 92 of the Evidence Act.
Justice Vimadalal, after analysing a catena of authorities and reported
decisions, mostly of the Supreme Court, expounded a very sound
principle of law, that the fundamental rule of construction of a
document is to ascertain the intention of the parties to it from the words
used in the document which is considered to be the written declaration
of their minds. If the words are clear of the intentions expressed and the
language applies to existing facts, extrinsic evidence is inadmissible for
construing the deed or for ascertaining the real intention. Extrinsic
evidence is admissible only to explain doubtful words. The subsequent
conduct of the parties is not relevant or admissible for the purpose of
construing a written document and consequently whatever transpired
subsequent to the written contract is not admissible for ascertaining the
terms.
In the above cited decision, reliance has also been placed on the
decision in Kamla Devi v. Tkakatmal reported in AIR 1964 SC 859. The
relevant passage at p. 863 reads:
". . . . when a court is asked to interpret a document, it looks at its
language. If the language is clear and unambiguous and applies
accurately to existing facts, it shall accept the ordinary meaning, for the
duty of the Court is not to delve deep into the intricacies of the human
mind to ascertain one's undisclosed intention, but only to take the
meaning of the words used by him, that is to say, his expressed
intentions. Sometimes, when it is said that a court should look into all
the circumstances to find the author's intention, it is only for the
purpose of finding out whether the words apply accurately to existing
facts. But if the words are clear in the context of the surrounding
circumstances, the Court cannot rely on them to attribute to the author
an intention contrary to the plain meaning of the words used in the
document."
After considering various other decisions, Justice Vimadalal relies on the
standard work of Odgers on the Construction of Deeds and Statutes and
the relevant passage cited by His Lordship is found at p. 43 of the 5th
Edn. (1967), which reads thus:
"Rule V.—When is extrinsic evidence admissible to translate the
language.—It is to be noticed that extrinsic evidence here does not
mean evidence of the writer's intention but evidence to enable the
Court to interpret the language used. It is only admissible as so often
with the subject of construction, when there is some doubt as to what
the words mean or how they are to be applied to the circumstances of
the writer."
To this I would like to add the passage found at page 44 (op. cit.), which
clearly repeats the saying of our Supreme Court in the decision reported
in AIR 1964 SC 859 and referred to above. The said passage in Odgers
reads:
"However, evidence is not admissible to contradict the plain and
unambiguous terms of a document by attempting to show that the
intentions of the parties were to give a meaning of the provisions
contrary to the words which the document plainly contains."
Justice Vimadalal also places reliance on a passage from Chitty on
Contracts, which passage is found at paragraph 661 in the 23rd Edn.
and reads as follows:
"Extrinsic evidence of this sort does not usurp the authority of the
written instrument. It is the instrument which operates. The extrinsic
evidence does no more than assist its operation, by assigning a definite
meaning to terms capable of such explanation or by pointing or
connecting them with the proper subject-matter."
Without boring my reader with any further questions, I would like to ask
a simple question. Do we expect the Court to impose a contract
between the parties? And that too in violation of the rules of evidence,
the stamp and the registration requirements? The inevitable answer is
"NO".
If we turn to Field's commentaries on the Evidence Act (10th Edn., 1972,
Vol. V at p. 4972), we find the following:
"When both parties are equally conversant with the true state of facts, it
is absurd to refer to the doctrine of Estoppel."
How does this synchronise with the statement of Their Lordships of our
Supreme Court which says: "A recital that the agreement does not
create a Tenancy is also not decisive"?
I was myself in the habit of inserting such clauses whenever I had to
draft a lease agreement for my clients. But as soon as I saw this
statement of the Supreme Court, in the decision cited above, I had no
other alternative but to add another clause which went to say that the
Licensee was signing the agreement only after obtaining independent
legal advice from his own advocate, who signed with him below in token
of his perfect understanding of each and every clause of the licence
agreement. And on one occasion when I saw some doubts on the face of
my client, I advised him to secure an Affidavit from his prospective
licensee to annexe it to the licence agreement and have it all
registered, lest his licensee got some super ideas at a future date. What
better can we advocates do in putting down the facts as told to us by
our clients?
The rulings of Supreme Court are undoubtedly opening the doors to the
unscrupulous. It would be preferable if Their Lordships were to leave the
parties to stand by their commitments and accept the consequences of
their own deeds. In fact, if such ruling were to be pronounced, all the
parties would have been more cautious when signing an agreement
whether of lease or a licence. If our legislators felt that there was
evasion of their strict laws regarding tenancies, it is open for them to
insert a simple clause to the effect that all the sections of the various
Rent Control Acts, extended also to licence agreements.
It is said that the law is the protector of interests. But with the present
rationale adopted by the Supreme Court, it is far from it. The licensor
does not know if his licensee is going to give a "volte de face" and brand
himself as a tenant and invoke protection under the Rent Control Acts.
So also a lessee is unsafe because he does not know if his lessor will call
himself a licensor and circumvent all the Rent Control Acts and put him
on the streets if he refuses to succumb to his extortions of an abrupt
increase in rent or for like reasons. We are definitely in the midst of a
whirlpool.
If the distinction between lease and licence was made clear by our
Supreme Court, how do we find that this issue is appearing frequently
before our High Courts? One of the recent reported cases is the one of
Eswari Amma v. M.K. Korah, reported in (1972) 1 MLJ 218. The very fact
that the same issue has come up before the Supreme Court more than
once is a clear indication that something is wanting.
I submit that if our Lordships were to state that the parties are to stand
by their written commitments, it would only enhance the cause of
justice; the parties would know exactly where they stand in relation to
each other; they would be more careful while signing agreements and
would be in position to take their respective stands, instead of being left
at the whims of the other party or the startling interpretations which the
Court would attribute to their writings; they would know that the Courts
would not upset the certainty of their agreements.
If the parties feel that the agreement which they executed did not
express their real intentions, they would have the remedy of filing a suit
for rectification of their agreements by invoking Section 26 of the
Specific Relief Act, no sooner the agreements are executed. But it would
be highly inequitable and a sheer injustice if they are allowed to carry
on with their agreements over years and all of a sudden try to get
smart. The line of reasoning as adopted by our Supreme Court makes
the contracting parties feel as fence-sitters.

RENT LAW
Lease And Licence E-mail
by N.S. Bindra * this
Cite as : (1972) 2 SCC (Jour) 15 Commen
ts
Print
(A comment on (1972) 2 SCC, pp. 1-8: Journal Section) Article
I was glad to read the article on the above topic by Mr C.F. Alvares,
Advocate, Margao, Goa. To comment on the decision of the highest
Court in the country, which lays down the law, requires courage, which
is one of the sterling qualities, an Advocate must possess. Mr Alvares
has criticised the crucial passage in Sohanlal v. Laxmidas.1 He has
divided the passage into three parts.
Re. 1st Part:
An instrument in writing is the repository of the intention of those who
execute it. How is that intention to be gathered. If the instrument is
capable of only one meaning: that interpretation thereof will disclose
the real intention of the parties. In that event, Section 92 of the
Evidence Act would not be contravened. If the instrument read as a
whole (for no part thereof can be ignored) is capable of two or more
interpretations then the internal aids to its interpretation and
surrounding circumstances must be called in aid to find out the real
intention of the parties. Section 92 aforementioned shuts out oral
agreement or statement for the purpose of contradicting, varying,
adding to, or subtracting from its terms. Internal aids to interpretation
(e.g., the document to be read as a whole, same word to have same
meaning throughout unless context belies it, draftsman's obvious
errors, doctrine of noscitur a sociis, etc.) assist in interpreting the
document as to what are really the terms of the document. Even
Section 92 has six provisos (exceptions) to the main section. The sixth
proviso (any fact may be proved which shows in what the language of a
document is related to existing facts) alone is very telling in this behalf.
Section 92 of the Evidence Act merely prescribes a rule of evidence. It
does not fetter the Court's power to arrive at the true meaning and
effect of a transaction in the light of surrounding circumstances. This
has been the law in England for several centuries and for about a
century in India . Parties no doubt get an opportunity to twist the
meaning of a document to suit their respective purposes, but that is the
feature in all litigation. As Lord Wright once observed (when a Counsel
submitted that it was an arguable case, when he was asking for special
leave to appeal to the Privy Council):
"I have never come across a case which is not arguable."
But that does not mean that law is uncertain. Hence the rationale
adopted by the Chief Justice Shah in Sohanlal case, based as it was, on
Clubwala case2 is not at all unsatisfactory.
Re. 2nd Part:
Just as a mortgage is a transfer of an interest in property, and a
usufructuary mortgage is a transfer of the interest along with the right
to appropriate the usufruct thereof (with the added condition of
securing the loan itself) similarly a lease is a transfer of a right to enjoy
such property. It is not merely a contract. Hence it is not appropriate to
suggest that:
"the fact that the definition of the licence states that it does not create
an interest in the property, has to be understood in its proper context,
viz. put in contrast to an easement and not when it is put in contract
with a lease."
For centuries in England and ever since the British Rule in India, a lease
always has connoted a transfer of an interest in property. We need not
consult the definition of 'licence' in Easements Act, in order to arrive at
the meaning of the word 'lease' in the Transfer of Property Act. The
definition of the word 'lease' therein does not contain the word
'possession'. Can it be argued that possession of the property in
question is not to be transferred in the case of a 'lease', on the ground
that it forms no part of the definition of the term 'lease' in Section 105
of the Transfer of Property Act?
Mr Alvares has also in the earlier part of his 'article' (viz. A Departure)
criticised the note in Mulla's Commentary on the Transfer of Property
Act and has observed:
"Can he (a licensee) not maintain a suit based on his possessory right?
Surely he can. How can we then accept the statement as given in
Mulla?"
Again the law in India also has throughout negatived the right of a mere
licensee to file a suit for possession under Section 9 of the Specific
Relief Act (now Section 6 of 1963 Act). Why? Because he never had
possession of the property wherefrom he has been ousted. He had only
'permissive occupation' thereof. (Vide: Nrittolal Mitter v. Rajendro
Narain Deb,3 Shoba v. Ramlal.4 See also Magunlal Radia v. State of
Maharashtra,5 Vimadalal, J., etc.)
Re. 3rd Part:
According to Mr Alvares, exclusive possession is no test at all in
determining whether a transaction is a licence or a lease. In his opinion
if he gives his rooms on a licence to someone, the latter's privacy
cannot be invaded. In his opinion if in a lease agreement, the landlord
stipulates a clause to enter and inspect the premises at any time, it
abridges the exclusive possession of the tenant.
Now a lessee has juridical possession of the object of the lease. A
licensee has merely a 'permissive occupation' thereof. By juridicial
possession, we understand, that a person stands in such relation to a
particular thing that he has in fact dominion over it. If you go with your
family to a cinema show leaving a guest in the house allowing him to
rest in your house for, say, two hours, and if you return to the house
before the show is over and find the house locked from inside by the
guest who refuses to open the entrance door, you need not go to Court
to get access to your house. You all along had dominion over the house
and you can break open the door itself and enter and turn out such a
guest from the house. Again, if you go to a hill-station during summer
and allow someone to occupy your house for two months, say on a
caretaker basis — getting compensation from him in the bargain — and
on your return after two months, he refuses to let you enter your own
house, you can forcibly enter and turn out the licensee, provided you
have not 'leased' the house to him. And if your licensee dies, say a
month after your departure, his legal representatives cannot claim to
occupy the house for the remaining period of two months.
If there is a stipulation in the lease-agreement that the landlord can
enter and inspect the premises at any time, and the tenent does not
allow the landlord to so enter, the breach of such a condition can only
sound in damages or forfeiture of the lease if there is a stipulation to
that effect in such a circumstance. The landlord cannot enter the
premises without the consent of the tenant, who has exclusive
possession thereof. The supply of sofa or furniture or electric fittings do
not affect the exclusive possession of the tenant. On the other hand the
infringement of the privacy of a licensee may lead to the exchange of
some hot words between the parties, but, it does not preclude the
licenser from entering into any part of the premises.
Finally, the crucial test promulgated by Mr Alvares, in case of a dubious
or ambiguous document is susceptible of the greatest mischief. We do
not have expert draftsmen who can bring out the intention of the
parties in clear unambiguous language and our subordinate judiciary is
recruited from young graduates in law, who have had no experience,
worth the name, at the Bar and whose vagaries in the interpretation of
such documents will promote litigation. Justice will be crucified at the
alter of speculation. Law may be said to be an ass, but it is we who
make it so.
In my opinion the judgments of the Supreme Court of India, in this
behalf are unexceptional and lay down, with respect, the law.

* Senior Advocate, 15-G, Nizamuddin West, New Delhi. Return to Text

(1971) 1 SCC 276 (a judgment by Shah, C. J.). Return to Text
(1964) 6 SCR 642. Return to Text
ILR (1895) 22 Cal 562. Return to Text
AIR 1957 All 394. Return to Text
1971 Mah LJ 57. Return to Text