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lease and license

(Querist) 25 June 2008 This query is : Resolved 
Give some authorities of superme court regarding condition when the possesion is with the leasse but the deed is of license.
whether it will be a lease or a license?
Guest (Expert) 25 June 2008
AIR 1959 SC 1262

In Associated Hotels of India Ltd. v. R.N. Kapoor16
the Supreme Court of India held that there were marked
distinctions between a lease and a license and considered the
following propositions-
(a) Whether a document creates a lease or license, the
substance of the document must be preferred to the
form;
arunprakaash.m. (Expert) 26 June 2008
It depends upon the intention of the parties. if the intention is for possession then it is lease. If it is for the purpose to do some act in that premises then it is license.
Manish Singh (Expert) 26 June 2008
you have provide a brief fact.
still the court always go into the real intention and substance of the agreement you enter into irrespective of the language mentioned in the agreement.
even if you write it as a licensor, but the subject mater entitles you to act as a lessee, you shall be treated as a lessee and the deed shall be the lease deed.
Guest (Expert) 26 June 2008
On more important thing is to be noted is Lease is covered by Transfer of Property Act whereas License is covered by Indian Easements Act.

Manisha, you need to really read these sections with case laws to know the subject better.
Manish Singh (Expert) 26 June 2008
Easement Act has only defined what is "license".
Basically EASEMENT ACT covers lease since under the term lease, you get entitled for easementry rights also but the case of license is different where you get only the license or authority to do what would otherwise be unlawful.
KamalNayanSaxena (Expert) 03 July 2008
The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the Rent Control Legislation. 'Lease' is defined in Section 105 of the Transfer of Property Act, 1882 while 'licence' is defined in Section 52 of the Indian Easements Act, 1882. Generally speaking the difference between a 'lease' and 'licence' is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (See Associated Hotel's of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262). The decided cases on the point are legion. For our purpose it would suffice to refer to a recent decision in Corporation of Calicut v. K. Sreenivasan, (2002) 5 SCC 361. AIR 2002 SC 2051 : 2002 AIR SCW 2105
PALNITKAR V.V. (Expert) 18 February 2009
I think the query is resolved in view of the citations and the views expressed by the Learned Experts. Thanks to all for the valuable additions.


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