licence notes-transfer of property

7/26/2019 LICENCE NOTES-TRANSFER OF PROPERTY

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LICENCE-DEFINITION AND GRANT OF LICENCE

INTRODUCTION Property is perhaps the most important and the most complicated andextensive branch of modern law. Under this eld of law, the rights, claims, duties andobligations of the parties involved with any kind of property become the subject ofstudy. Earlier, licence was described as the fact that a landowner communicatedhis consent to anothers using his land! while at other times licence was described thelegal relationship whereby the other could use the land without being liable fortrespass. "n present times, licence is referred to as a validation by the owner of theland for the acts of the licensee which would otherwise be committed unlawfully. #he traditional concepts of $bare% or $mere% licenses, licenses $coupled withan interest% or $with a grant,% licenses $acted upon% or $executed,% and licenses$upon valuable consideration% were used earlier. &ost of these concepts assumed

certain di'erences in the legal conse(uences of various transactions, and thereforefurnished a poor starting point for determining what the legal conse(uences of a giventransaction should be. "t also made it easy to overlook important license transactionswhich these phrases did not suggest. ) factual classication of licenses which starts with the di'erences in theparties intentions will place in one group the transactions wherein the parties havecontemplated that the interests created should be revocable. *ut the transactionswhere the parties have contemplated irrevocable interests re(uire further subdivision.) large number of licenses are not at all lacking in formality! they are called licensessolely to distinguish them from leases. )nother large group of licenses are so calledbecause they are oral! previous discussion has been conned almost entirely to these.

+icenses of another group present a di'erent problem because they are written butunsealed. till other licenses are so called, although they are in writing .and underseal, because they lack technical conveyance language.)ccording to some scholars, the legal instrument of $+icense% in immovable propertieswas developed to deal with the legal complications of lease and rental rights under"ndian law. "n particular, this legal instrument was developed to enable propertyowners to restrict lessees and evict them more easily. till, many property owners thatintended to protect themselves by entering a leave and license agreement -i.e. alicense agreement to use an immoveable property for a certain purpose, ndthemselves facing court decisions ruling that their agreement was in fact a lease

agreement. ome of the mistakes made by such property owners may be avoided"n this work, elucidated the meaning of licence and how a licence is granted in "ndia."n "ndia, "ndian Easements )ct of /001 governs such transactions. ection 21, 23 and24 are the relevant provisions provide to understand concept and grant of licence in"ndia. #he di'erentiation between leases and licence along with lease and easementhave also been made.

DEFINITION OF LICENCE

) licence is a personal right granted to a person to do something uponimmovable property of the grantor and does not amount to the creation of interest in

the property itself. "t is purely a permissive right and is personal to the grantee. "tcreates no duties and obligations upon the persons making the grant and is, therefore,revocable except in certain circumstances expressly provided for in the "ndianEasements act, /001 itself. #he licence, when granted, has not other e'ect to conferliberty upon the licencee to go upon the land which would otherwise be lawful.


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$) licence in the law of land is ordinarily a permission merely to do something on or tothe detriment of the land of the giver of the licence, the licensor. 5ccasionally it is apermission to interfere with an easement orproft a prendrebelonging to the licensor."t creates a privilege in favor of the licencee.%) licence may be oral in which case, terms, conditions and the nature of the licence,can be gathered from the purpose for which the licence is granted coupled with theconduct of the parties and the circumstances which may have led to the grant of thelicence. Every licence is governed by the provisions under the Easements act.) licence does not confer an interest or property in the thing, and though it may becoupled with a grant which conveys an interest in property, licence by itself does notconfer any interest.6here the parties entered into a partition agreement and divided the property givingthemselves certain rights, it would not amount to a licence.

#he negative denition of licence under "ndian law makes it necessary that before aright can be shown to be a licence only, it must be proved not to be an easement oran interest in the property.A.Licence under English Law

)ccording to English +aw, a licence is purely a personal privilege or right enabling thelicencee to do something on the land of the licensor which would otherwise beunlawful."t is an excuse by reason of the consent of the licensor for doing an act whichwould otherwise be unlawful. "t is merely a leave to do a thing, which enables thelicencee to do lawfully what he could not otherwise do except unlawfully.) licence is merely a permission to do an act, which without such permission wouldamount to a trespass. ) dispensation or licence properly passeth no interest, noralters or transfers property in anything, but only makes an action lawful, whichwithout it had been unlawful.

+icence is only a permission to do something on an immovable property likeoccupation, or enjoying fruit thereof, or using it for some other purpose.

+icense is an o7cial permit or permission to carry on some business or do someact which without the license would be unlawful and the words license and permit areoften used synonymously. +icence is interchangeable with permission. Permission orlicence is granted for use of an immovable property for a particular purpose given bythe granter to the grantee which as of a necessity in his retention of dominant right ofpossession over the immovable property with the granter.

LICENCE UNDER INDIAN LAW

"n "ndia, the "ndian Easements )ct, /001 provides for law relating to licences in

property law. ection 21 of "ndian Easements )ct, /001 denes +icence as under8$6here one person grants to another, or to a denite number of other persons, a rightto do or continue to do, in or upon immovable property of the grantor, somethingwhich would, in the absence of such rights, be unlawful, and such right does notamount to an easement or an interest in the property, the right is called a licence.%9rom the above denition of licence, it seems that if a person himself has ac(uired aright or interest in an immovable property through an instrument, the right conveyedin his favour in that instrument, will not be licence. "n "ndia, judicial and legislativedenitions of licence have followed the English denitions of the term.Under ection 21, if a person is given the right to use the immovable property in aparticular way under certain terms while retaining control and possession of the same,

the person so permitted is only a licencee. #he (uestion that arises in this context isthat whether the relationship is that of landlord:tenant or licensor:licensee. #herelationship depends on the intention of the parties that whether there was interest inthe land or merely personal privilege without any interest.) licence cannot be granted only in favour of denite number of persons and not infavour of ;uctuating body or individuals. #he agreement involved in the case, even if


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binding on the defendants, cannot be considered to be at least a bilateral agreementbetween the representatives of the two parties and containing reciprocal conditions. )licence is a personal right given to the licencee and, therefore, ection 2< of theEasements )ct, /001 provides that licence cannot be transferred by the licencee orexercised by his servants and agents.

#he upreme =ourt in>Associated Hotels of India Ltd.v. R.N. Kapoor summedthe concept of +icence as under8$Under the aforesaid section, if a document gives only a right to use the property inparticular way or under certain terms while it remains in the possession and control ofthe owner thereof, it will be a licence. #he legal possession, thereof, continues to bewith the owner of the property, but the licencee is permitted to make use of thepremises for a particular purpose. *ut for the permission, his occupation would beunlawful. "t does not create in his favour any estate or interest in the property.%I i!"#ran # a$e n#e #% essenial %eaures #% licence as under/& N# rans%er #% ineres8) licence is a permission to do some act which, withoutsuch permission, would be unlawful.1 N# ineres in accrei#ns 8) licensee has no interest in the property and

therefore, he ac(uires no right by accretion.3 Neiher rans%era'le n#r heria'le 8) licence is neither transferable! norheritable.4 ) licence is a matter purely "ers#nalbetween grantor and grantee.2 (eci#n )* #% Ease!en)ct does not re(uire any consideration, material ornonmaterial, to be an element of the denition of licence, nor does it re(uire that therightunder the licence must arise by way of contract or as a result of mutual promises.


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) bare licence is a personal permission or consent, granted without consideration,to enter, traverse over or be present upon the land of another. ) bare licence is alicence granted gratuitously which is not coupled with the grant of an interest inthe land, e.g. the licence which one necessarily grants to ones guests. uch alicence may be revoked at any time.

) bare licence is a defence to what would otherwise amount to the tort of trespass.6here the licencee oversteps the ambit of the licence, his status will therefore be thatof trespasser."f the person is permitted to enter the land for one purpose but entersfor another purpose, or whilst on the land begins to pursue a di'erent purpose to thatwhich he is authorised, again he becomes a trespasser, where it is known orunderstood that the occupier would not have given consent."f a person is allowed to do the act on the land without interfering with the nature ofthe land or without taking any prots from the land, then it is a case of bare licence.*are licences may be created expressly or impliedly and no formalities are re(uired Ba bare licence may arise by implication from circumstances or conduct.*are licenses generally are not assignable -transferable and are revocable at will bythe property owner. *are licence becomes irrevocable when the licensee acting upon

the licence executes a work of a permanent character and incurs expense in doing so.*. Licence c#u"led wih a gran #r ineres in land) licence coupled with a grant or interest in land arises where there is a permission toenter onto anothers land for the purpose of removing something from that land -suchas timber. #his licence combines the grant of an interest -such as a prot a prendrewith an ancillary permission to enter the land to realise or exploit that interest.) license coupled with an interest arises when a person ac(uires the right to takepossession of property located on someone elses land, as when a lender ac(uires theright to repossess an automobile that is located on private property after the borrowerhas defaulted on a loan.) licence may be coupled with the grant of an interest in the land, as when standing

timber is sold on terms that the purchaser is to sever the timber8 the sale of thetimber on these terms implies the grant to the purchaser of a licence to enter the landin order to obtain the timber. uch a licence is irrevocable so long as the interest towhich it is annexed lasts, and unless otherwise agreed it can be assigned."f the person is allowed to take exclusive possession of the land, to plant trees over it,then it is not a bare licence but it is a licence that is coupled with grant or interest inland. "f the licence gives the licensee a right to make a construction on land, it is not abare license but it is a licence coupled with an interest in land. "n such a case, thelicensee who has entered possession after execution of the licence, is entitled tomaintain a suit against the trespasser who has dispossessed him.

+icenses coupled with an interest usually are both assignable and irrevocable, at leastuntil the holder of the license has had a reasonable time to retrieve the property thatgave rise to the license. 6here such operative facts give a privilege accessory to andin aid of the exercise of a power, or other legal interest, otherwise vested in thelicensee.Graui#us licensee

#he word $Cratuitous% means without consideration or freely./. Cratuitous licensee shall not transfer license to any other person.1. Cratuitous licensee shall not le suit against trespasser or stranger.In case #% 0ishivanah 0. 1anda'hai re"#red in 2234*!.C.R. 536/ it washeld that a gratuitous licensee cannot claim any legal right in the property.

Righs #% 7licensee 8/. Decision passed by court against licensor is binding on the licensee.1. 6hen licence is revoked, then licensee is entitled to reasonable time to leave theproperty a'ected thereby and to remove any goods which he has been allowed toplace on such property.


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3. 6hen gratuitous licensee executes work of permanent character during licence andwith the consent of licensor, then gratuitous licensee is entitled to get compensationof expenses incurred by him after revocation of licence.Duies #% Graui#us licensee 9/. "t is the duty of gratuitous licensee that he shall not cause injury or damage to theproperty.1. "t is his duty that he shall not make any permanent change in the property oflicensor which is in his possession.3. "t is his duty to abide each and every terms and condition of licence.4. "f licensor is not aware about any injury or damage caused to the property oflicensor by third person, then it is the duty of licensee to inform it to licensor.2. "t is his duty to disclose any defect in the property of licence to licensor if he ndsit.


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#he denition in ection 21 of the )ct referred to above does not refer to exclusivepossession. "f there is no exclusive possession then the arrangement cannot be alease and must be a licence. #he general rule is that the =ourt will look at thesubstance of the agreement rather than the form in which it is expressed.

#he !a>#r di?erences 'eween lease and licenceare8

) +ease is a transfer of right to enjoyment -exclusive possession of thatproperty by the lessor the lessee, made for a certain term in consideration of afee subject to the terms set out in the lease agreement while a licence is thegranting of a permission to use the land in consideration of a fee subject to theconditions set out in the licence.

) lease grants exclusive possession for a xed period -term. ) licence does notgrant exclusive possession.

) lease creates an interest in the land which can be transferred to the lessee forthe period of the lease. ) licence does not create or transfer an interest in theland.

) lease can be transferred -assigned to another party and if registered on thetitle is binding on a new owner of the land. ) licence is not transferable.

) lease is not revocable -other than subject to any conditions set out in thelease -e.g. a redevelopment clause. ) licence is revocable.

Licence and Ease!en9 Disinci#n)s per (eci#n 5 #% he Indian Ease!ens Ac/


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#he provisions relating to granting of licence are the same as those governing theeasements. #he provisions relating to granting of licence in "ndia are ections 23 and24 of the "ndian Easements )ct, /001.

#wo preliminary (uestions that arise when entering into a +eave and +icenceagreement are B who can grant a licence and how a licence is granted.

#he rst (uestion is answered in section 23 of #he "ndian Easements act, /001, thatstates that a licencee may be granted by anyone in the circumstances and to theextent in and to which he may transfer his interests in the property a'ected by thelicence. "n other words, one cannot grant a licence and one cannot receive a licence ifthe licensor does not possess a su7cient lawful interest in the property.

#he second (uestion is answered in section 24 of #he "ndian Easements act, /001,that states that a the grant of a licence may be express or implied from the conduct ofthe grantor, and an agreement which purports to create an easement, but isine'ectual for that purpose, may operate to create a licence. #his denition is veryimportant. 5wners of properties should mind that their behavior may create a licence,even without a formal licence agreement.

+icence is, therefore, a grant of a right to do something upon an immovable withoutcreating interest in the property. "t is therefore, distinguishable from an allied grantsuch as a lease or an easement. *oth lease and easement create an interest in theproperty. +icence is only a permission to do something on an immovable property likeoccupation, or enjoying fruit thereof, or using it for some other purpose.

;OWER TO GRANT A LICENCE

ection 23 provides for the power to grant a licence. "t states that B ) licence may begranted by anyone in the circumstances and to the extent in and to which he maytransfer his interests in the property a'ected by the licence.

Power to grant a licence is co:extensive with the power to transfer. ) man can grant alicense in the circumstances and to the extent he can transfer his interest in theproperty a'ected thereby. #he power to grant a license is only a personal rightattaching only a personal obligation on the grantor is more extensive than the powerto impose an easement which a'ects the property itself.) licence by a mortgagee or co:tenant who is lawfully in the sole possession andenjoyment of the property, to do a thing which he could himself lawfully do is a validlicence. )nyone who can transfer property even if he is not the owner can grant alicence. #he licence can also be revoked by such a person.

#he grant of licence may be express or implied which can be inferred from the

conduct of the grantor. Under ection 21, there is a grant of the right made by thegrantor. 6ithout a grant in the general sense, no licence can be created.)n agreement for licence can subsist and continue to take e'ect only so long as thelicensor continues to enjoy a right, title and interest in the premises. 5n thetermination of the right ot the title, the agreement for licence comes to an end. "f thelicensor is an tenant, the agreement for licence by him terminates with the tenancy,and the licence ceases to be licensee."n order to grant a licence, the licensor need not be the owner of the property. #hetenancy rights are also immovable rights of the tenant and therefore, he can grant thelicence. *ut by virtue of ection 23, the tenant can grant the licence subject to thelimitation and the extent to which he may be able to transfer the interest, viF., the

tenancy rights. ) tenant is empowered to transfer his interest but he cannot do sobeyond the term of his lease.

FOR@ OF LICENCE EB;RE(( OR I@;LIED


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ection 24 provides that B #he grant of a licence may be express or implied from theconduct of the grantor, and an agreement which purports to create an easement, butis ine'ectual for that purpose, may operate to create a licence.) licence is notionally created where a person is granted the right to use the premiseswithout becoming entitled to the exclusive possession of them or the circumstancesand conduct of the parties show that all that was intended was that the granteeshould be granted a personal privilege with no legal interest.) mere licence passes no interest nor alters or transfers property in any way butmerely makes an act lawful which without would have been unlawful. "t is necessarythat the licence be in writing or registered.6here the licence is coupled with a grant ofimmovable property or of an interest in immovable property, which is compulsorilyregistrable, it must be in writing or registered.

I!"lied Licence) licence may be implied from the conduct of the licensor whereby he allowssomething to be done on his land by another person who believes the land to be hisown.GxlvH) plea of implied licence may be based on the right of e(uity to intervene,

must have for its foundation either a contract or the existence of some fact which thelegal owner is stopped from denying.)n everyday:life example of implied licence is in the case of a shopkeeper in theinvitation to customers to enter his premises to do business.+icence may also be implied from the conduct of the licensor which induces in themind of the licensee a reasonable belief that the former consents to the latters doingof certain acts, the doing of which would have been unlawful but for such consent.

#he consent may also consist of words, spoken or written or acts and omissions on thepart of the licensor that would invoke reasonable belief in the mind of the licenseethat what he does is either actively approved or not objected to by the licensor.) licence to enter upon the land of another is not implied by the sale of goods which

are stored upon the land, by a person other than the person against whom it isclaimed, nor the failure of the tenant to keep the premises in repairs authorises thelandlord to enter upon it for that purpose, in the absence of a contract to that e'ect.

E"ress Licence)n express license is one which in direct terms authoriFes the performance of acertain act! as a license to keep a tavern given by public authority. Express licencesgovern more specic situations where the permission has been expressly directedtowards a particular individual. )n example is where owner invites guests for dinner orto stay in a room on his property. #he licence governs only the specied period of thestay and any re:entry after that period without further permission would constitute

trespass."t is important to note that a person cannot grant a licence to himself or to himselfjointly with another. #herefore, it must be granted by an owner of the property who isdi'erent from the licensee.)s a grant forms the basis of an easement as well as a licence, an agreement whichpurports to create an easement may operate to create a licence only if it is ine'ectualfor certain reasons to create such easement. )s both an easement and licencelegaliFe acts which would have been unlawful otherwise, both go hand in hand butwhile licence stops, an easement goes further and incorporates itself with theproperty of the grantee, the benecial enjoyment of which is its principalcharacteristics. #he rule in England where an easement is created only by grant under

seal has a very salutary e'ect. "n "ndia, the cases between landlords and tenants, inwhich a grant by the former to the latter, of a right of easement, is ine'ectual tocreate an easement in the strict sense of the term, are covered by this rule.

RE0OCATION OF LICENCE
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a ) conjoint regarding of s.2A and


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D 6here the property a'ected by the licence is destroyed or by superior force sopermanently altered that the licence can no longer exercise his right!E 6here the licensee becomes entitled to the absolute ownership of the propertya'ected by the licence.9 6here the licence is granted for a specied purpose and the purpose is attained orabandoned or becomes impracticable!C 6here the licence is granted to the licensee as holding a particular o7ce,employment or character, and such o7ce employment or character ceases to exist!J 6here the license totally ceases to be used as such for an unbroken period oftwenty years and such cessation is not in pursuance of a contract between the grantorand the licensee!" "n the case of an accessory licence, when the interest or right to which it isaccessory ceases to exist.

CONCLU(ION

#he conclusion that the term license implies nothing does not mean that there is no

law of licenses. #here is license law, but it must be stated in terms of particular typesof cases. 6here a licensor gives no reason to expect otherwise, the licenseesprivileges can be terminated at will. 6here a licensor manifests an intention that theprivilege shall be more enduring, the conse(uences depend upon othercircumstances. "f it o'ends no legal policy, the license may create a true easement. "fit o'ends the rule re(uiring a sealed instrument, it will probably create an easement,but the licensee can obtain relief only through e(uitable procedure. "f enforcement ofthe license would encumber the land with relatively useless burdens, neither theparties expectations nor their formalities nor their expenditures will give the interestthe characteristics of an easement.

#his simple rationaliFation of license cases is largely impeded by the ambiguous usage

of license to signify sometimes a transaction, sometimes a relationship. )ll the recentwriters agree that one of the usages should be adopted and the other rejected, butdisagree on which to adopt and which to reject.Illusrai#n 4A&9)n owner of a property enters into a lease thereof, but to avoid the rigours of Ient=ontrol legislation, calls it as a licence agreement. #hough such a lease is captionedas a Klicence agreementL, the terms thereof show that it is in essence, a lease. uch alicence agreement which puts the licensee in exclusive possession of the premises,untrammeled by any control, and free from any directions from the licensor -instead ofconferring only a bare personal privilege to use the premises will be a lease, even if

described as licence. 9or example, if the exclusive possession of an apartment or a;at or a shop is delivered by the owner for a monthly consideration without retainingany manner of control, it will be a lease irrespective of whether the arrangement iscalled by the owner as a KleaseL, or KlicenceL. )s far as the person who is let intoexclusive possession, the (uality and nature of his rights in respect of the premiseswill be that of a lease or a tenant and not that of a licensee. 5bviously such aKlicenseeL cannot be KevictedL or KdispossessedL or prevented from using the premiseswithout initiating legal action in accordance with law.Illusrai#n 4&9

#he owner of a land constructs a shopping mall with hundred shops. #he owner of themall earmarks di'erent shops for di'erent purposes, that is sale of di'erent types of

goodsmerchandise, that is shops for exclusive clothing for men, shops for exclusiveclothing for women, shops for hosieries, shops for watches, shops for cameras, shopsfor shoes, shops for cosmetics and perfumes, shops for watches, shops for sportsgoods, shops for electronic goods, shops for books, shops for snacks and drinks etc.

#he mall owner grants licences in regard to individual shops to licensees to carry onthe identied or earmarked business. #he licensor controls the hours of business,


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regulates the maintenance, manner of display, cleanliness in the shops. #he ingressand egress to the shop licensed to the licensee is through the corridors in the mallleading from three or four common access pointsentrances which are under thecontrol of the licensor. #he licensee is however entitled to stock the shop with brandsof his choice though he does not have the right to change the earmarked purpose,entertain any clientale or customers of his choice and x the pricesterms for hisgoods. Je can also lock the shop at the end of the business hours and open itwhenever he wants. Mo one else can trade in that shop. "n such a case, in spite of therestrictions, controls and directions of the licensor, and in spite of the grant beingdescribed as licence, the transaction will be a lease or tenancy and the licenseecannot be dispossessed or evicted except by recourse of law.Illusrai#n 4C&9"n a shopping complex or in a mall the owner gives a licence to a person to use acounter to sell his goods in consideration of a fee. #he access is controlled by thelicensor and there is no exclusive use of any specic space by the licensee. )t the endof the day, the licensee can close the counter. #he space around the counter is visitedand used by customers to the mall and not exclusively by the customers of the

licensee. "n such a case, if the licence is terminated, the licensor can e'ectivelyprevent the licensee from entering upon his premises and the licensee will have noright to use the counter except to remove his belongings. "n such a licence it may notbe necessary for the licensor to sue the licensee for KpossessionL or KevictionL.Illusrai#n 4D&9) much narrower version of a licence is where an exhibitor of cinematograph lms, ora theatre owner permits a KcustomerL or KguestL to visit an entertainment hall to viewand enjoy a movie or a show for the price of a ticket. #he licensee is permitted tooccupy a seat in the theatre exclusively for the period of the show. 5r a cloakroomwith toilet facilities in a public building permits a visitor to use the toiletclosetfacilities on payment of a fee. #he licensee is permitted to use the toiletcloset

exclusively to relieve himself. "n such cases, the licence is for a specic purpose andfor a specic period. #he licensee has no other right to enter the premises, nor theright to continue to occupy the seat in the theatre or use the toiletcloset continuously.uch a licensee can be forcibly removed by the licensor if the licensee overstays orcontinues to occupy the seat beyond the show, or refuses to leave the cloakroom. "t isnot necessary for the licensor to sue the licensee. "llustration -E8) reputed manufacturer of textiles owns several retail outlets in di'erent parts of thecountry. #he outlets are housed in premises owned by the manufacturer or premisestaken by it on lease. #he manufacturer employs a sales manager on salary for eachoutlet to manage the outlet and sell its products and entrust him with the keys of the

premises, so that he can open the outlet for business and close the outlet at the endof the day. 5r the manufacturer, instead of engaging a sales manager, appoints anagent who is permitted to sell only the products of the manufacturer in the retailoutlet, and receive a commission on the turnover of sales. #he manufacturerstipulates the manner of sale, and the terms of sale including the prices at which thegoods are sold. #he manufacturer also checks the products sold periodically to ensurethat only its products -and not fakes are sold. #he manufacturer also reserves theright to terminate the services of the sales manageragent. "n such cases ontermination of the services of the employeeagent, the manufacturer can physicallyprevent the sales manageragent from entering the retail outlet and make alternativearrangements for running the outlet. #here is no need to approach a court to KevictL

the sales manageragentCA(E LI(TAss#ciaed #els #% India Ld. vs. R.N. ,a"##r/ 263 (CR 6< 4(u"re!eC#ur/ 2)2&

o ) lease is a transfer of an interest in land. #he interest transferred is called theleasehold interest. #he +esser parts with his right to enjoy the property during


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the term of the lease and the lessee gets that right to the exclusion of the+esser.

o "n case of license, the legal possession continues to be with the owner of theproperty, but the licensee is permitted to make use of the premises for aparticular purpose. *ut for the permission his occupation would be unlawful. "tdoes not create in his favour any estate or interest in the property.

@rs. @.N. Clu'wala v. Fida ussain (ahe'/ 265 6 (CR 65* 4(u"re!eC#ur/ 265&

o 6hether an agreement creates between the parties the relationship of landlordand tenant or merely that of licensor and licensee the decisive consideration isthe intention of the parties. #his intention has to be ascertained on aconsideration of all the relevant provisions in the agreement.

Chandu Lal vs. @unici"al C#r"#rai#n #% Delhi/ AIR 2H< Delhi H5 4Delhiigh C#ur/ 2H


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o ) license, inter alia, -a is not assignable! -b does not entitle the licensee to suethe stranger in his own name! -c it is revocable and -d it is determined whenthe grantor makes subse(uent assignment.

@adhu ehal and Anr. vs. Rishi ,u!ar and Anr./ 4*332& ;LR 6*< 4;un>a' ar+ana igh C#ur/ *332&

o "t is never a nomenclature in the document that governs the decision as towhether a document as a Nlease or a Nlicence.

o #he essential feature that distinguishes a lease from licence is always a transferof interest in the demised property in a transaction of lease while a licenseedoes not involve any such transfer of interest.

o #he lease is heritable while license is personal to the grantee.o #he legal possession of the property is inevitably transferred to a tenant under

lease while in a transaction of license the legal possession continues with thelicensee and the licensee has a mere right of user of the premises in a particularfashion mentioned under the document.

In Booker v. Palmer[xxix], +ord Creen stated that:$#here is one golden rule to befollowed is that law does not impute an intention to enter into contractual

relationships where the circumstances and the conduct of the parties negative anyintention of the kind.%In C!! v. Lane[xxx], +ord Denning said that:$#he (uestion in all these cases is oneof intention8 Did the circumstances and conduct of the parties show that all that wasintended was that the occupier should have a personal privilege with no interest in theland.%
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licence notes-transfer of property

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