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RENT LAW
Lease And Licence E-mail
by N.S. Bindra * this
Cite as : (1972) 2 SCC (Jour) 15 Commen
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(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.