T.S. Krishnamoorthy Iyer, J.
1. The suit instituted by the plaintiff who is the appellant for declaration of his title to and for recovery of the plaint schedule property was concurrently dismissed by the Courts below.
2. The plaint property admittedly belongs to the Illom of the plaintiff. The plaintiff's case is that it was entrusted to the first defendant who was the kariastha of the Illom for some time by the plaintiff's father deceased Kesavan Nambudi-ri. The first defendant ceased to be the kariastha of the Illom in the year 1132. But out of consideration for the first defendant the property was not resumed and he was allowed to be in enjoyment of the property. The first defendant executed Ext. A-l lease on 12-2-1958 in favour of his son who is the second defendant. In view of Ext. A-l the plaintiff is entitled to recover possession of the property.
3. The first defendant while admitting the title of the plaintiff's Illom to the plaint property contended that he is alessee of the plaint item. Ext A-l, was executed in favour of the second defendant with the consent of the plaintiff and he has no right to recover possession of the plaint schedule property.
4. According to the plaintiff, the en-trustment of the property by his father to the first defendant is only in the nature of a licence and not a lease and therefore he is entitled to recover possession of the property. The Courts below found that the first defendant is a lessee of the plaint schedule property and not a mere licensee and even though the plaint property belongs to the plaintiff's Illom the plaintiff has no right to recover possession. To appreciate the controversy between the parties it is necessary to take note of certain admitted facts in the case.
5. There is no document to evidence the transaction between the plaintiff's lather and the first defendant. The plaint property was outstanding on registered kanom from 1887 in favour of the first defendant's brother Kanaran Nair who was also the Karyastha of the Illom. After his death the first defendant who was even then the karyasthan of the Illom continued in possession of the property under that lease paying rent to the Illom. While so the nephews of the first defendant trespassed upon the property and forcibly harvested the crops. The Illom therefore filed O. S. 201 of 1929 to remove the trespass. Ext. A-7 is the copy of the extract of the suit register evidencing the institution of O. S. 201 of 1929. After the property was recovered in execution of the decree in O. S. 201 of 1929 it was again given to the first defendant. Ext, A-7 shows that the kanom was for Rs. 75/- and the annual rent fixed for the property is 108 1/2 edangazhies of paddy. The evidence is not quite specific regarding the date of death of Kanaran Nair. The delivery in execution of O. S. 201 of 1929 was on 14-10-1929. According to the first defendant, the institution of O. S. 201 of 1929 by the Illom was at his instance to eject his nephews who were trying to put forward certain rights against him and the property was after delivery entrusted back to him by the Illom. The Courts below held that the entrustment of the property to the first defendant by the Illom was in continuation of the kanom in favour of Kanaran Nair.
6. The plaintiff's case is that during the time when the first defendant was taking the yield of the property he was not being paid any salary and the arrangement was that the yield should be appropriated towards his remuneration for the service he was rendering as Karyastha and therefore he was a licensee and not a lessee. To support his contention the learned Counsel for the plaintiff reliedon the decision in B. M. Lall v. DunlopRubber & Co. Ltd., 1967-2 SC WR 406= (AIR 1968 SC 175). In that case the question arose whether the occupation by an officer of a company of a building belonging to the company while in company's services is in the nature of a licence or lease. Their Lordships observed:
'The transaction is a lease, if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not decisive, see Errington v. Errington and Woods. (1952) 1 KB 290 (292); Associated Hotels of India Ltd. v. N. N. Ka-poor. 1960-1 SCR 368 at pp. 381-385= (AIR 1959 SC 1262 at PP. 1268-1270) though it is a very important indication in favour of tenancy. See Addiscombe Garden Estates Ltd. V. Crabbe, (1958) 1 QB 513 at p. 525. A servant in occupation of premises belonging to his master may be a tenant or a licensee, see Hals-bury's Laws of England Third Edition, Vol. 23, Article 990. p. 411. A service occupation in a particular kind of licence whereby a servant is required to live in the premises for the better performance of his duties. Formally, the occupation of the servant was regarded as a tenancy unless it was a service occupation, see Nippon Menkwa Kalmshiki v. F. Port-lock, AIR 1922 Bom 70. Now it is settled law that a servant may not be in service occupation. In Torbett v. Faulkner, (1952) 2 TLR 659 at p. 660, Denning L. J.. said: 'A service occupation is, in truth, only one form of licence. It is a particular kind of licence whereby a servant is required to live in the house in order to do his work better. But it is now settled that there are other kinds of licence which a servant may have. A servant may in some circumstances be a licensee even though he is not required to live in the house, but is only permitted to do so because of its convenience for his work: see Ford v. Langford, (1949) 65 TLR 138. per Lord Justice Asquith, and Webb Ltd. v. Webb unreported. 24-10-1951 and even though he pays the rates, Gorham Contractors Ltd. v. Field (unreported, 25-3-1952) and even though he has exclusive possession Cobb v. Lane, (1952) 1 TLR 1037.'
The Lord Justice then continued.
'If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money;but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and nonetheless a tenant because he is also a servant. The distinction depends on the label which the parties choose to put upon it; see Facchini v. Baryson, 1952-1 TLR 1386.'
7. The decision in the case turned on the terms of the written agreement between the parties. The principle in such cases is stated thus by their Lordships of the Judicial Committee in Corporation of Calcutta v. Province of Bengal, AIR 1944 PC 42:
'The general principles upon which a tenancy as opposed to an occupation as servant is created are not in dispute. The mere fact that it is convenient to both parties that the servant should occupy a particular house and that he is put in possession of it for that reason does not prevent the servant from being a tenant: his possession is that of a tenant unless he is required to occupy the premises for the better performance of his duties though his residence is not necessary for that purpose or if his residence there be necessary for the performance of his duties though not specifically required. See per Brett, J., in (1875) 10 CP 285 at p. 295.
The position is unaffected by the circumstance that the servant is entitled to occupy the house only so long as he retains his position as servant or the particular office in virtue of which the house is provided. The same principles apply though he may be a tenant at will. See (1875) 10 QB 422 and (1890) 24 QBD 147.'
In G. G. of India v. Corporation of Calcutta, AIR 1948 Cal 8, B. K. Mukherjea, J., after a review of several decisions on the subject observed thus:
'If it is a requirement of the contract of service that a servant should live in a house owned by the master whether it is suitable to him or not or if the occupation is necessary and subservient to the service it should be deemed to be the occupation of a servant and. not of a tenant.
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On the other hand, if residence is merely optional or is a matter of convenience to the employee and is not required for the better or more efficient performance of his service the occupation will be deemed to be that of a tenant and not of a servant.' It is in the light of these principles that question has to be considered. It cannot be disputed that the ultimate answer to the question will depend upon the intention of the parties to the transaction. In the absence of any document we have to be guided by the surrounding circum-stances and the way in which the first defendant began to enjoy the property. The institution of O. S. 201 of 1929 by the Illom was for purpose of putting back the first defendant into possession of the plaint schedule property when he was dispossessed by his nephews. This obviously shows that the Illom of the plaintiff wanted the 1st defendant to continue in possession on the same terms on which he was in possession prior to the filing of O. S. 201 of 1929. That possession was not that of a licensee but a lessee.
8. It was also pointed out by the learned Counsel for the appellant that in Ext. A-l there is no reference to any, lease. The expression used is '* * *' (Ori-ginal in Malayalam omitted). It is not possible from those words to infer that the 1st defendant is only a licensee. In these circumstances, the, findings of the Courts below are correct and they do not require any interference. The Second Appeal is therefore dismissed but in the circumstances, I make no order as to costs.