SHARMA, J.- The only point involved in this appeal is whether the document (Ex. 20) executed by
the parties at the time the appellant was inducted in the disputed premises is an agreement of leave
and licence or a deed of lease. The building belongs to the respondent, and the appellant claims to be
in its occupation as a month to month tenant. The respondent instituted the suit in the civil court, out
of which this appeal by special leave arises, for a decree for eviction of the appellant alleging that he
has been in occupation of the building as a licensee and has illegally refused to vacate in spite of
service of notice. The appellant’s defence is that he is a tenant protected by the provisions of the Goa,
Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, and in view of Section 56
thereof the suit in the civil court is not maintainable. Agreeing with the plaintiff respondent, the trial
court passed a decree which was confirmed on appeal by the District Judge. The High Court
dismissed the second appeal filed by the appellant observing that it was concluded by concurrent
findings of fact.
2. We do not agree with the High Court that the findings of the courts below were those of fact so
as to be binding on the High Court under Section 100 of the Code of Civil Procedure. The case has to
be decided on the nature of possession of appellant which is dependent on a correct interpretation of
the document Ex. 20.
3. The document Ex. 20 has been described as an agreement of leave and licence and the parties as
the licensor and the licensee. But it is significant to note that in the very first sentence of the document
the respondent is described as “Landlord hereinafter called the Licensor”. However, this cannot
answer the disputed issue as it is firmly established that for ascertaining whether a document creates a
licence or lease, the substance of the document must be preferred to the form. As was observed by this
Court in Associated Hotels of India Ltd. v. R..N. Kapoor [AIR 1959 SC 1262], the real test is the
intention of the parties – whether they intended to create a lease or licence. If an interest in the
property is created by the deed it is a lease but if the document only permits another person to make
use of the property “of which the legal possession continues with the owner”, it is a licence. If the
party in whose favour the document is executed gets exclusive possession of the property, prima facie
he must be considered to be a tenant; although this factor by itself will not be decisive. Judged in this
light, there does not appear to be any scope for interpreting Ex. 20 as an agreement of leave and
licence.
4. The document has been placed before us by the learned counsel for the appellant. Although as
stated earlier, it has been described as an agreement of leave and licence and the parties as the
“licensor” and the “licensee”, its provisions unmistakably indicated that the appellant was being let in
as a tenant on the monthly rental of Rs 350 (besides water and electricity charges) to be paid regularly
on or before the 5th day of each consecutive month. By Clause 5, it was agreed that the appellant
“shall not sub-let, under-let or part possession of the premises to any stranger nor shall he keep the
premises vacant for more than 3 months without the consent of the licensor”, that is, the respondent.
The question of executing a sub-lease or sub-letting can arise only by a tenant. If a licensee inducts
any person in the property as his tenant, it cannot be described as sub-letting. In Clause 15 it is stated
that on the expiry of the period, the deed “shall be renewable thereafter at the will of the licensee”;
and in the event of the licensee not desiring to renew, “shall give one month’s notice in writing”.
These terms are not consistent with the respondent’s case of licence, and indicate that an interest in
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the property was created in favour of the appellant in pursuance of which he was put in possession
with a right of renewal. When compared with the terms of the documents set out in the judgments in
Associated Hotels India Ltd. v. R. N. Kapoor and Sohan Lal Naraindas v. Laxmidas Raghunath
Gadit [(1971) 3 SCR 319], relied upon by the learned counsel for the appellant, which were construed
by this Court as creating lease in spite of their description as licence deeds, the appellant’s case stands
out as stronger. If the approach adopted by the courts below in interpreting the document is accepted,
it shall defeat the object of the Rent Acts, by permitting the parties to camouflage the real nature of
the transaction by resorting to skilful drafting.
5. Mr Dholakia, learned counsel for the respondent, strenuously contended that the test of
exclusive possession is an outdated one which should not now be taken into account for the purpose
of deciding the nature of possession. Reliance was placed on the observations of Lord Denning, M.R.
in Shall-Mex and B. P. Ltd. v. Manchester Garages Ltd.[(1971) 1 All ER 841] We do not agree that
exclusive possession of a party is irrelevant as is suggested; but at the same time as has been observed
in the earlier cases of this Court, referred to above, it is not conclusive. The other tests, namely,
intention of the parties and whether the document creates any interest in the property or not, are
important considerations. The observations in the English case, relied upon by the learned counsel for
the respondent cannot be understood to suggest that the test of exclusive possession has been now
rendered irrelevant and redundant as they are immediately followed by the statement:
“As I have said many times, exclusive possession is no longer decisive.”
The position stands further clarified by the following statement in the concurring judgment of
Buckley, L.J.:
“The only clause which points one way or the other, I think, is Clause 19 in Schedule 1
which Lord Denning, M.R. has already read, which clearly recognises that notwithstanding
the bargain between the parties, the plaintiffs retained rights of possession and control over
the property in question. That seems to me to be consistent only with the fact that this
transaction was in truth a licence transaction and not a tenancy under which the defendants
would obtain an exclusive right to possession of the property during the term of the tenancy,
subject, of course, to any rights reserved by the plaintiffs.”
We are also not in a position to agree with Mr Dholakia when he says that if the parties themselves
have chosen to describe the transaction as a licence, we cannot make out a different case for them. It
is well settled that the main purpose of enacting the Rent statutes is to protect the tenant from the
exploitation of the landlord, who being in the dominating position is capable of dictating him terms at
the inception of the tenancy; and, the Rent Acts must receive that interpretation which may advance
the object and suppress the mischief. By adopting a different approach the Rent laws are likely to be
defeated altogether.
6. The surrounding circumstances are also consistent with the deed being one of lease. The notice
to vacate the premises was served on the appellant after several years of expiry of the term of the
agreement. It is not suggested on behalf of the respondent that there is any relationship between the
parties or that they were friends which induced him to allow the appellant to occupy the building.
Realisation of rent which has been described in the document (Ex. 20) as “compensation reserved for
use and occupation” was the sole consideration of the transaction. In this background the description
of the parties as lessor and lessee or the rent as compensation does not carry much weight.
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7. For the reasons mentioned above, we hold that Ex. 20 was in reality a document of lease
and the appellant has been enjoying the exclusive possession thereof in the capacity of month to
month tenant. As a result the suit was, in view of the provisions of the Goa, Daman and Diu Buildings
(Lease, Rents and Eviction) Control Act, not maintainable. The appeal is accordingly allowed but
without costs, the decree passed by the courts below is set aside and the suit is dismissed.
