Leave and licence

Question asked on: 17/02/2017

A person intentionally treated the lease document as leave and license. He is trying to evict the person in whose favour that lease deed is executed. What are the ingredients of lease and leave & license?

Advised by: Shivendra Pratap Singh,

A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property.

Intention of the parties are the most important fact in determination of nature of right in respect of leave and licence. The Bombay High Court in the case of Sohanlal Naraindas v. Laxmidas Raghunath Gadit [(1966) 68 Bom LR 400] has held that the intention of the parties and exclusive possession were important elements to decide actual and real nature of the right in respect of immovable property.

Exclusive right to use or enjoy the immovable property is the deciding factor that whether there is lease or licence.  In M.N. Clubwala v. Fida Hussain Saheb [(1964) 6 SCR 642, 653] the supreme court of India emphasised that if the exclusive possession to which a person was entitled under an agreement with a landlord was coupled with an interest in the property, the agreement would be construed not as a mere licencebut as a lease.

As far as your case is concerned, according to the agreement you have exclusive right to use said premised on the fix rent. When rent is fixed and interest of the property has transferred in order to said consideration or rent it shall be construed as lease instead of leave and licence. If permission to use land without exclusive possession was alone granted, a licence was the legal result.

Therefore, you have right over the property to use it for the stipulated period mentioned in the agreement. The landlord’s contention that you are a licensee shall not be sustained. You can claim compensation if lease agreement is terminated before completion of stipulated period.

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Shivendra Pratap Singh

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