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Bai Hanifa Jusab Vs. Memon Dadu A. Gani, Sardharia - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtGujarat High Court
Decided On
Case NumberA.F.A.D. No. 917 of 1961 with Civil Appln. No. 631 of 1962
Judge
Reported inAIR1964Guj44; (1964)GLR198
ActsEasements Act, 1882 - Sections 2, 52, 60 and 64
AppellantBai Hanifa Jusab
RespondentMemon Dadu A. Gani, Sardharia
Appellant Advocate S.K. Zaveri, Adv.
Respondent Advocate S.B. Vakil, Adv.
DispositionAppeal dismissed
Cases ReferredBajpai J. In Ganga Sahai v. Badrui Islam
Excerpt:
civil - licence - sections 2, 52, 60 and 64 of easements act, 1882 - matter pertaining to revocability of licences - whether agreement which was contract of service always terminable by either party - section 60 empowers grantor to revoke licence at any time even during periods mentioned unless it is one of licences falling under sections 60 (a) and 60 (b) - grantor of licence coupled with agreement not precluded from revoking licence - licence whether coupled with agreement or not is always revocable. - - the respondent alleged that the appellant who was of a quarrelsome nature picked up quarrels and failed to look after mohammed amin as she was expected to do. he further held that the defendant had failed to prove that the' plaintiff was not entitled to properties as alleged by her.....mody, j. 1. an important question regarding the revocabllity of licences arises in this second appeal tiled by the appellant-defendant against the respondent-plaintiff tram a judgment of the assistant judge, rajkot district, at gondal.2. the appellant is the divorced wife of the respondent. there was one issue of the marriage betweenthe respondent and appellant by name mohammed amin. in the year 1955 proceedings were started by the appellant for the maintanance of the minor mohammedamin. on july 3, 1958, at an appellate stage in theseproceedings, an agreement was arrived at between meappellant and the respondent. since a number of pointsarising in this second appeal revolve round this agreement,it is necessary to refer to the terms of this agreementin same detail. this agreement is in the.....
Judgment:

Mody, J.

1. An important question regarding the revocabllity of licences arises in this second appeal tiled by the appellant-defendant against the respondent-plaintiff tram a judgment of the Assistant Judge, Rajkot District, at Gondal.

2. The appellant is the divorced wife of the respondent. There was one issue of the marriage betweenthe respondent and appellant by name Mohammed Amin. In the year 1955 proceedings were started by the appellant for the maintanance of the minor MohammedAmin. On July 3, 1958, at an appellate stage in theseproceedings, an agreement was arrived at between meappellant and the respondent. Since a number of pointsarising in this second appeal revolve round this agreement,it is necessary to refer to the terms of this agreementin same detail. This agreement is in the Gujarati language.This agreement is in the form of a writing acaresseaby the respondent to the appellant and the recital mentionsthat the terms of the agreement arrived at between weappellant and the respondent in settlement are as set out in the agreement. Clauses 1 to 4 of this agreement areas follows:

1 reus gkyeka vefuus laHkkjokekVs rFkk ?kjdke djok ekVs jk[kokeka vkosy Ns- rsuh cnykeka ekVs jlksMs ts [kkokuqaikds rs [kkouqa vus ojl fnols 4 o tksMh tkMk diMk igsjok ej vkiokuk Ns-

2 reus lqok cslok ekVs ekjhMsyhuk vanj ,d /kj vkioqa Ns-

3 rekjs illegiblerse [kksVqa czksyoqa ds dksbZuh nq'euh djoh uFkh-

4 ekjs T;k lq/kh gaq ekjhfeydruh ogsap.kh d:a vFkok ohy d:a R;ka lqoh rekjs mij y[;k izek.ksa resxksaMyeka eksgaen vehu lkFks jgsokuaq Ns- gqa ogsap.kh djh eus egaen vehuuk gfgLlkek ts vkiqa rsuh O;oLFkk ekjs ekjh g;krh lq/kh djokuk N- ekjh g;krh cknO;oLFkk rekjs djokuh Ns-

These relevant terms rendered into English wouldread as follows:

(1) You are being kept for the purpose of looking after Mohammed Amin and for the purpose of doing household work. In consideration you will be given food which may be cooked in my kitchen and you will be given tour pairs of ordinary clothes for wearing every year.

(2) I have to give you a house in my 'dell' for the purpose of sitting and lying down.

(3) You should not . .. . ..or lie nor should youcreate any enmities.

(4) Till I distribute my estate or make my will, you have to stay with Mohammed Amin as written above here at Gcndal. When I make a distribution and when I give any thing to the share of Mohammed Amin, I have to manage It during my lifetime and after my lifetime you have to carry on its management.

This agreement thereafter goes on to record other terms regarding payment in the maintenance suit for bus-tare, arrears, etc. and records that a sum of Rs. 128-120 has been paid in cash to the appellant on that day for wmcn. she passed receipt. The last term of this agreement provides that whatever expenses the appellant may have incurred in connection with the maintenance suit for Mohammed Amin should be borne by the appellant and whatever expenses the respondent may have incurred should be borne by the respondent. In pursuance of this agreement the appellant was allowed to occupy one room in the house of the respondent, to dine at the respondent's kitchen and to do work in the household of the respondent and looked after Mohammed Amin. The respondent alleged that the appellant who was of a quarrelsome nature picked up quarrels and failed to look after Mohammed Amin as she was expected to do. In these circumstances, on May 25, 1959, the respondent addressed a notice to ma appellant to vacate the room occupied by her and to hand over possession of the movables which the respondent had given to the appellant for use.

3. The appellant did not hand over possession of the room as required by the notice, in these circumstances on November 25, 1959, the respondent filled a suit in the Court of the Joint Civil Judge (Junior Division), Gondal, being Civil Suit No. 266 of 1959 praying for possession of the room and also for the movable properties that the respondent had given to the appellant, me appellant filed her written statement contending that me plaintiff was not entitled to evict her from the room as the same was not given to her on any agreement or leave and licence. She further contended (on the assumption of a licence) that the respondent was not entitled to have her evicted so long as he did not make a will of his property or divided the property. She submitted that me respondent's suit should be dismissed with costs.

4. This suit came on for hearing before the learned Civil Judge (Junior Division) at Gondal, The first issue raised was, whether the plaintiff, proved that the suit properties were given on agreement of leave and licence, and this Issue was answered by the learned Judge in the alternative. He held that the plaintiff was entitled to possession of the suit properties. He further held that the defendant had failed to prove that the' plaintiff was not entitled to properties as alleged by her in her written statement. The learned Judge interpreted this agreement and held that it was a service agreement and the service having been terminated, the appellant was liable to hand over possession. As regards the appellant's contention that till the respondent made a will or divided his property sne was not liable to be evicted under Clause (4) of the agreement, he held that the clause did not entitle the appellant to live in the house till a will was made or distribution was effected. He held that the words used in this clause could not take away the right of the respondent to remove her from service and once she was removed from service the other part of the clause would not operate. The learned trial Judge accordingly decreed the suit.

5. The appellant being dissatisfied with this Judgment and decree filed an appeal in the Court of the Assistant Judge, Rajkot District at Gondal. The learned Assistant Judge also held that the appellant was occupying the room in question under leave and licence of the respondent. He also negatived the appellant's contention that she was entitled to live in the room so long as the respondent made a will or made a distribution of his property. He also took the view that the agreement was a contract of service and as such was always terminable by either party at his or her will. He held that all the clauses had to be read as a whole and if read as a whole the residence was directly connected with service. (6) The appellant was obviously not satisfied even with this judgment and order and she (preferred the-present second appeal to the High Court, fending lie-second appeal, the respondent filed a civil application m the second appeal being Civil Application No. 631 of 1962 stating that he had executed a will on March 9, 1962, at Gondal making provision for his minor son Mohammed Amin. He averred that in any view of the matter the contingency mentioned in Clause (4) of the agreement had come to pass and he accordingly prayed that additional evidence may be allowed to be recorded or the first appellate Court should be directed to take additional evidence and that an additional issue should be named arising on the execution of this will.

7. When this second appeal reached hearing betore a Single Judge of this Court, a question arose whether a licence even for a fixed period was revocable or not and a judgment of the Bombay High Court reported in M.F. DeSouza v. Childrens Education Uplift Society : AIR1959Bom533 was cited. As some difficulty was experienced by the learned Judge in following this judgment, the matter was referred to a Division Bencn. This matter thus came up for hearing before us.

8. At the hearing of this second appeal before us the first submission made by Mr. Zaveri was that this agreement created some interest in the immovable property and that interest amounted to a tenancy. This sub-mission was but faintly pressed by Mr. Zaveri. We fall to see how this agreement creates any interest in any immovable property in favour of the appellant. We will presently consider the real nature of this agreement when we come to deal with the second submission made by Mr. Zaveri. Suffice it to say at the present moment that none of these clauses set out above in the slightest degree hint at creating any interest in any immovable property at all, much less an interest of the nature of a tenancy. There are no words of demise nor is there any term which would be usually found in an agreement of tenancy. There is, therefore, nothing further to be said in regard to this submission made by Mr. Zaveri. we do not think that by any stretch of imagination any tenancy is created in favour of the appellant or that any interest in any immovable property is created by this agreement.

9. Mr. Zaveri's second submission was that the agreement constituted a family arrangement between me appellant and the respondent under which the custody or the minor Mahammed Amin was continued with the mother (the appellant) and it was arranged that accommodation for living should be provided both for the minor Mohammed Amin and the appellant in the family house till the contingencies mentioned in Clause (4) came to pass, viz. that the respondent either executed a will or distributed his property. In his submission, the arrangement could only come to an end if there was a distribution of property by the respondent or the respondent came to execute a will. In support of this submission he argued that one had to look at the previous litigation in order to find out the real Intent and meaning of this agreement. According to him, the previous litigation concerned itself only with me minor and the appellant made no claim for herself therein. The focus, therefore, in the present agreement was on the minor and she came in only as an appendage to the minor. In substantiating this argument he urged that the whole arrangement was with the minor in view, that she had merely to stay with the minor but that she did form a part of the entire arrangement under Clause (4) under which she was to stay with the minor and to take care of him till the contingencies mentioned in that clause happened. His submission was that this family arrangement was capable of being enforced. This was an arrangement for the maintenance and residence of the minor which arrange ment it was not open to the respondent to terminate; and If it was not open to him to terminate this arrangement it could not affect the rights of the appellant either. He further submitted that, in any event, assuming sne-had no rights in the property nor under the arrangement there was no termination with regard to the rights of the minor and till. the minor's rights were terminated of till the contingencies set out in Clause (4) came into. operation, the appellant could not be thrown out of this immovable property. We will, therefore, have to proceed to examine the terms and nature of the agreement to find cut whether it is a family arrangement. It is undoubtedly-true that this agreement was executed in the background of the litigation for the maintenance of the minor Mohammed Amin. The words used in these clauses cannot bo said to be entirely clear. In these circumstances, we will also have to examine the background and the surrounding circumstances for the purpose of gauging the intention of the parties when they entered into this agreement,

10. Now, the first thing to be noted about this agreement is that though it is undoubtedly in the background of the litigation respecting maintenance of the minor Mohammed Amin, the appellant has entered into this agreement not as a guardian of this minor. It appears to us that on a true construction, the guardianship of the minor is left with the respondent father. For the sake of convenience, however, and for the purpose of looking after this minor, an agreement is arrived at between the appellant and the respondent whereunder she has to look-after this minor and to do household wort and in consideration she is to be given food and clothing. Clause (2) undoubtedly also gives her the facility of residence En a house but this clause, however, does not create any rights in her in this property because the very words 'tor me purpose of sitting and lying down' Indicate that nothing, more than a permission to occupy this house is given, to the appellant. That facility or permission given to her is not for the benefit of the minor Mohammed Amin. Clause (4), however, does say that till the respondent distributed his estate ar made a will she should stay with Mohammed Amin 'as written there to before' mij y[;kizek.ksaat Gondal. In our opinion, however, these words do not mean that any right is created in the minor or even a permission was given to the minor to stay in the house referred to in Clause (2). It appears to us that the whole idea behind this agreement is that Mohammed Amin should stay with the respondent, his father and guardian, that the appellant should look after him and do some household work and in consideration be given food and clothing and also a shelter. The words ^^res xksaMyek eksgean vehu lkFksa jgsokuq Ns** do not mean that the minor has to stay in the premises referred to in Clause (2). According to us these words mean that the minor is fo stay with the father but that the appellant has to stay in the manner mentioned in Clauses (1) and (2), that Is, for the purpose of looxing after the minor and doing household work and in the premises which are made available to her for that purpose. The words ^^lkFks jgsokuq Ns** do not mean that the appellant and the minor have to stay in we same premises. In these circumstances, the very foundation of Mr. Zaveri's argument in support of a family arrangement viz. the argument that the agreement creates no fights in the appellant but is merely for the benefit of the minor disappears. It is not an agreement for the benefit or the minor. It is not (sic) an agreement which is arrivea at between the father and the mother wnereby, on the one hand, it is implicitly made clear that the son should stay with the father and, on. the other hand, arrangements are made for looking after this son. This arrangement for looking after the son is made by arranging for the mother's stay and by giving her food and maintenance on the one hand and shelter on the other. Clause (7) provides that this arrangement is to continue till the respondent made a distribution of his property or his will, and goes on to say that even after he distributed the property and gave a share therein to minor Mohammed Amin, in the respondent's lifetime that share should be managed by him whereas after his death it has to be managed by the appellant. This arrangement undoubtedly contemplates the welfare of the minor but it cannot be said that it constitutes a family arrangement. In we first place, being an agreement between the divorced spouses, we do not see how it can be said to be a family arrangement. In Haisbury's Laws of England, Third tuition, Volume 17, page 215, paragraph 355, a family arrangement is defined as an agreement between members of the same family, intended to he generally and reasonably for the benefit of the family either By compromising doubtful or disputed rights or by preserving me family property or the peace and security of the family by avoiding litigation or by saving Its honour. The present arrangement is not an arrangement between members of the same family nor is it for the benefit of the family generally, it is not one which tends to the preservation of the family property or for the peace or security of the family or the avoidance of the family disputes or litigation or for the saving of the honour of the family, in fact, this arrangement does not touch the family properties at all. It is merely an arrangement for looking after the minor and that is secured by having his mother in the family house. It is furtehr provided that she snoum so look after the minor till the contingencies mentioned in Clause (4) come to pass. We have, therefore, to examine the real nature of the agreement and to see whether it is open to the respondent to terminate this agreement. As we have already held, no rights having been created in favour of the minor, no question arises as to the termination with regard to his rights as a pre-requisite to the filing of the suit as contended for by. Mr. Zeveri.

11. We will, therefore, now proceed to examine the nature of the agreement vis-a-vis the appellant in connection' with her residence in this immovable property. 'The agreement creates certain rights' in favour of the appellant as well as certain liabilities. Her right is to reside in the house that may be given to her with the minor till the respondent distributed his property or made his will. She is also given the right to receive food and clothing. On the other hand, her liabilities are to work in the house and to take care of Mohammed Amin in the property is distributed or a will is made by the respondent. Thus, as far as residence is concerned, it is provided that she should be given a house for the purpose of sitting and lying down, in other words, she is to be given a shelter. Then it goes on to provide that she should in this manner go on staying with the minor till the contingencies mentioned come to pass.

12. How, a 'licence' is defined in Section 52 of the Indian Easements Act, 1882, as follows:

'Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.'

Does this agreement create any interest in this property The obvious answer is in the negative. On the face ot it, It i$ merely a permission and does not create any interest in the property. Does this agreement in so far as it relates to the house create any easement in her favour? the answer to this question is also obviously in the negative. There is no question of any easement being created. In our opinion, she is merely given a right by the respondent to use the deli for the purpose of sitting and lying down and she has to continue to stay there till the distribution of the estate or the execution of a will by the respondent. Had it not been for the grant of such right, the residence of the appellant in this immovable property would have been unlawful. This right does not amount either to an easement or any interest in that immovable property as we have already indicated above. By this agreement the respondent has clearly granted to we appellant a licence to stay in the house in the deli and according to Clause (4), this licence is to enure till me respondent distributed his estate or made his will. We nave already dealt with Mr. Zaveri's contention that by mis agreement an interest is created in this immovable property and that, therefore, this agreement was not a licence but something more than a licence. We do not think that there is any force in this contention. There is no interest created in the immovable property and in the absence of any such interest in the immovable property and it not being an easement this grant can be nothing but a licence.

13. Mr. Zaveri then contended that assuming for the purposes of argument that by this agreement the respondent granted a licence to the appellant this licence was irrevocable. His submission regarding the irrevocability ot the licence he sought to support on two grounds, His first' ground was that on a true interpretation of this agreement the grant was coupled with a transfer of property. That transfer of property, according to him, was a transfer of the right to stay. He relied on Section 60(a) or the Indian Easements Act, 18BZ, which provides: 'A licence may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force.' The words 'transfer of property' in section 60(a) came to be Interpreted in Janardan Manadeo v. Ramchandra Mahadeo, 29 Bom LR 312 : (AIR 1927 Bom 240) where it was held that the words 'transfer of property' in Section 60(a) were not used in the limited sense of a transfer as defined in the Transfer of Property Act. In that case, on a partition between two brothers, We deed of partition provided that the second brother snouia be allowed to take water out of a particular well and it was held that though this right did not amount to an easement, it was a licence as defined in Section 52 of the Indian Easements Act,. 1832, and it was further held that this licence was coupled with a 'transfer of property', they held that in the corresponding English Law the word generally used was not 'transfer' but 'grant' in connection with licences and according to their Lordships, the word 'transfer' in Section 60(a) was used in that sense. Even putting a wider interpretation on the words 'transfer of property', we do not think that in the case before us there is any such grant as indicated in that case. There is no transfer or grant of a right in the immovable property. It is merely a permission. In 29 Bom LR 312 (AIR 1927 Bom 240) the licence was granted as a part of the partition and it was, therefore, held that it was a licence coupled with the' transfer of property and there-fore irrevocable. In the case before us, there arises no question of the nature that arose in that case. We do not think that Janardan v. Ramchandra can help Mr. Zaveri. There is no transfer of property even in the sense ot a grant. It cannot, therefore, be said that the licence is coupled with the transfer of property or that any such transfer is in force within the meaning of Section 60(a) so as to make the licence irrevocable.

14. The second ground on which Mr. Zaveri relied for his submission that this licence could not be revoked was apart from Section 60(a). His submission was that the licence was granted by the respondent to the appellant to stay in this immovable property coupled with an agreement that she should continue to stay there till the contingencies mentioned in Clause (4) came to pass. In other words, it was an agreement to allow her to stay in the house and it was not open to the respondent to put an end to the agreement and to throw her out. iT, therefore, was a licence till that contingency arose ana, according to him, till that contingency came to pass (and undisputably on the date of termination in this case it had not) it was not within the power of the respondent to revoke the licence. The argument ran that apart from Section 60(a) there may be cases in which a licence may be irrevocable. We will, therefore, have to proceed to examine the relevant provisions of the Indian Easements Act, in particular, in relation to licences.

15. The preamble to this Act says that the Act is enacted, as it was expedient to define and amend the law relating to easements and licences. Section 2 specifically sets out that which is saved from the provisions of the Act. It provides that nothing contained in the Act should be deemed to affect any law not expressly repealed; or to derogate from, amongst other things, any customary or other right (not being a licence) in or over any immovable property which the Government, the public or any person may possess irrespective of other immovable property. It is thus clear that whatever was intended 'to be kept out of the purview of the Act has been set out in Section 2. Whereas all other customary and other rights in or over immovable property have been saveo, licences have been excepted therefrom.

16. With this background we will turn to Chapter v which deals with licences. Section 52 which is the first section in this Chapter defines a licence. Section 53 provides as to who may grant a licence. Section 54 says that the grant of a licence may be express or implies. Section 55 touches accessory licences. Section 56 refers to the ordinary transferability of licences. Section 57 casts a duty upon the grantor to disclose defects in the property affected by the licence. Section 58 casts a further obligation on the grantor not to do anything likely to render the property unsafe. Sections 59, 60, 61, 62 and 64 provide as follows:

'59. When the grantor of the license transfers the property affected thereby, the transferee is not as suchbound by the licence.

6O. A license may be revoked by the grantor, unless-

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.

61. The revocation of a license may be express or implied.

62. A license is deemed to be revoked-

(a) when, from a cause preceding the grant of it the grantor ceases to have any interest in the property attected by the license;

(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;

(d) where the property affected by the license is destroyed or by superior force so permanently aflterea that the licensee can no longer exercise his right;

(e) where the licensee becomes entitled to the absolute ownership of the property affected by the license:

(f) where the license is granted for specified purpose and the purpose is attained or abandoned, or becomes impracticable;

(g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist:

(h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee:

(i) in the ease of an accessory licence when the interest or right to which it is accessory ceases to exist

63. xxxxxxxxxx

64. Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.'

It appears to us that the Legislature has provided all that was to be provided in connection with licenses in this chapter. The Legislature has not left anything touching licenses to be found outside these sections. The contention advanced on behalf of the appellant was that Section 60 is not the only section under which a license can be made irrevocable. According to him where the licence was coupled with an agreement that the licence shall enure for a stated period such a licence is irrevocable during that period. Reliance was placed on a judgment of Tyaoji J. In Chintamanrao Appasaheb v. Ramacnandra Govinda, 34 Bom LR 92: (AIR 1932 Born 130) where he held that a person, who failed to establish the acquisition of an easement under Section 15 of the Indian Easements Act, can yet establish its acquisition by immemorial user, What was held in that case was that Section 15 did not attech easements by immemorial user. Tills was something which was not found in the Act itself and therefore it was held that in a matter which the Act did not expressly deal with, the Act was not exhaustive. That is not so in regard to licences in regard to Which there are clear and complete provisions in the Act which is a detning and amending Act in our opinion, it is exhaustive in connection with matters which it deals with, it deals with licences exhaustively and as such, as far as licences are concerned, it defines the law in relation to licences, me sayings contained in Section 2 do not touch licences, in these circumstances, in our opinion, the law is exhaus-tive as far as the law of licences in India to cencerned. There are cases of Indian High Courts where they have relied on the law in England as far as licences are concerned. But in our view, in the words of Sir Lawrence Jenkins C. J. In Framji Shapurji v. Framji Edulji, 7 Bom LR 825 at p. 832, .

'..... .the Law of Easements is defined by we Indian Easements Act 1882, and it therefore seemed to me, in the language of Bowen L.J., a wiser policy to go back in a humble spirit to the words of the Act by which our decision must be governed.'

With respect we also do not think that we should turn to any law outside the Indian Easements Act in so far as it relates to licences but that we feel it would be a wiser policy to go bach in a humble spirit to the provisions regarding licences in this Act itself.

17. It appears to us that the grant of a licence may be (i) a grant simpliciter or (ii) the grant may be coupled with a transfer or (iii) the grant may be coupled with an agreement. As far as any grant simpliciter is concerned, under the first part of Section 60, any licence may be revoked by the grantor and as such such a grant can be revoked. As far as any grant coupled with a transfer is concerned, that is specifically dealt with in Section bui. and it makes any grant coupled with a transfer of property irrevocable. As far as grants coupled with agreements are concerned, they may be of two types: (1) grant and agreement acting upon which a licensee may carry out work of a permanent nature and incur expenses thereon, (2) grants with some other agreements such as relating to time for subsistence of the licence. As far as (1) is concerned, such a licence is made irrevocable under section 60(b). The question that arises is in connection with a grant coupled with an agreement other than of the type mentioned in (1). Would it be open to the grantor to revoke the licence and thus commit a breach of such an agreement? Such licences are not made irrevocable under Section 60. Even in such cases there is a grant of a licence to do or to continue to do something on the Immovable property of the grantor which the grantee could not have otherwise lawfully done. It certainly is a grant within Section 52, but then it is coupled with an agreement. In our opinion, such a grant coupled with an agreement is always revocable at the will of the grantor, That this was the intention of the Legislature is amply shown by Section 64 which provides that where a licence nas been granted for a consideration, and the licensee, with-out any fault of his own, is evicted by the grantor before he has fully enjoyed under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor. In other words, if there is an agreement (which would postulate consideration) and the grantor evicts 'a grantee before the term of the agreement has expired, the only right that the grantee would have is to recover compensation from the grantor, me Legislature in terms 'contemplated the revocability of an licences other than the licences mentioned in section 60 by providing for compensation for its breach. This section can leave no doubt that any licence with an agreement, say for a term of years, would always be revocable at the volition of the grantor, This is also further shewn by the various contingencies under which a licence is deemed to be revoked under Section 62. Under Clause (c) of that section, when the licence is for a limited period, then the licence is deemed to. be revoked when the period expires. When the licence is for a ' specific purpose then me licence is deemed to be revoked when the purpose is attained. These clauses indicate the periods for wnich licences may enure. But Section 60 (which lays down a rule of revocability} gives a further right to the grantor to revoke a licence at any time even during the periods mentioned unless it is one of the licences which fall under Clauses (a) and (b) thereof.

18. Mr. Zaveri, however, relied on a judgment or Mudholkar J. (in the case referred to) in 61 Bom LR 150: (AIR 1959 Bom 533). The learned Judge there held mat if parties enter into a contract and arrive at an agreement to the effect that a licence shall be irrevocably or shall be limited for a particular duration, the licensor will not be entitled to terminate or revoke the licence at his will. He further held that, apart from Section 60 of the Act, under the law of contract, a grantor of a licence would be precluded from revoking the contract of licence because of the contractual engagement into which he had entered. The learned Judge there relied on a passage in Corpus juris Secundum, Vol. Llll, pp. 815-816, accord-ing to which there were exceptions to the rule that an licences were revocable. It appears to us that it was not argued before the learned Judge that the Indian basements Act defined the law relating to licences and the law relating licences was as contained in Chapter VI of that Act. It also appears to us that the very important provision contained in Section 64 in regard to payment of compensation for prematurely determined licences was not brought to the notice of the learned Judge. With the greatest respect to the learned Judge, we do not agree that, apart from Section 60 of the Indian Easements Act and apart from the two categories mentioned therein, under the law of Contract a grantor of a licence could be precluded from revoking, the contract because of the contractual engagement into which he had entered. It appears to us that except the contracts which are mentioned in the Specific Relief Act which are capable of a specific performance, the only other remedy which a contracting party can have in regard to breaches of contract is the remedy by way of damages. This is not any of the contracts which are made specifically enforceable under the Contract Act. It, therefore, cannot De that a grantor of a licence which is coupled with an agreement can be said to be precluded from revoking the licence and with it the contract because of the contractual engagement into which he had entered. The contractual engagement could always be put an end to (with the consequences it may visit) and so also can the licence be revoked (with similar consequences).

19. The other case which was relied on was a judgment of Das C.J. (as he then was) and Soni J. In Dominion of India v. R. B. Sohan Lal, AIR 1950 EP 40. In that case Das C.J. examined the provisions of Section 60 and observed that subject to any special agreement to the contrary, a licence is revocable unless (1) it is coupied with a grant or interest, or (2) the licensee acting upon the licence has. spent money in executing works of a permanent nature. Then he went on to say that the two tests of irrevocability mentioned in the section will give way to the special agreement, if any, of the parties and even in the case of a licence which was prima facie irrevocable either because it is coupled with a grant or interest or because the licensee has erected works of a permanent nature, there would be nothing to prevent parties from agreeing expressly or by necessary implication that the licence shall nevertheless be revocable, menthe learned Judge referred to a number of cases andstated.

'On the same lessoning, I should think. Were will be nothing to prevent the parties from agreeing expressly or impliedly that a license, which is prima facie revocable being not within either of the two categories of irrevocable license should nonetheless be irrevocable.'

With respect we do not agree with the view of the East Punjab High Court. Section 60 lays down a rule of revocability and carves out only two exceptions. With respect, the approach in the East Punjab case appears to be that Section 60 lays down the rule of irrevocability, which, in our opinion, is not the correct approach. The opinion of the learned Judges is entitled to the highest respect and we have given our most anxious thought to the views expressed there. We may state in passing that no provision has been pointed out to us to show trial me Easements Act was at the relevant date applicable in the Punjab. It may be, as pointed out by Das C.J., that me grantee may have his relief by way of a suit for enforcement of a negative covenant, but with that we are not concerned. The basic question is, is a licence always revocable except in the case mentioned in Clauses (a) and (b) of Section 60. In our view, except in these cases any licence whether coupled with an agreement or not, is always revocable.

20. A number of other cases were cited at the bar in support of the appellant's contention, but we need refer to these cases but in brief. The first was a judgment of Bajpai J. In Ganga Sahai v. Badrui Islam, AIR 1942 All 330 in that case the document in question was held not to be a licence at all and we fail to see now that case can be of any assistance to Mr. Javeri at all. The next was 3 case of Chotey Lal v., Mt. Durga Bai : AIR1950All661 in which the licencee executed a work of a permanent character under a clear understanding that he or his heirs may be called upon after a certain time to leave the land, and it was held that it was not open to him to plead such work as a bar against his eviction. This case was relied on for drawing an analogy of reasoning that Section 60 could not override any condition of a licence, in other words, that there could be a contract outside the provisions of section 60 which could always - be enforced. The question that arose for determination in this case did not arise in the manner in which it has arisen before us. The approach in that case was entirely different in view of its peculiar facts, me effect of Section 64 did not come in for consideration at all. We do not think that that case can be of any use to us. In Arpan AM v. Jnanendra Kumar : AIR1945Cal413 , a Division Bench of the Calcutta High Court held that if there was a contract between the licensor and the licensee not to revoke the licence for a time or indefinitely such licence could not be revoked. The easements Act did not at the relevant time apply at Bengal and the Judgment proceeds entirely on an application of the English law on the subject. It has been repeatedly held that the English Law as regards easements and licences is different. (See AIR 1950 EP 40 and 7 Bom LR 825). This case does not refer to any of the sections relating to licences in the Easements Act at all. This case can, therefore, be of little assistance to us. In our view none or these cases except the East Punjab and the Bombay case are on the point at all. As far as the view expressed in the East Punjab and the Bombay case is concerned, for the reasons indicated above, with the utmost deference, we take a different view. In our judgment, the Chapter relating to licences in the Easements Act contains complete provisions in itself as far as licences are concerned. H provides all that was necessary to provide in connection with licences. Section 58 provides as to who could grant a licence, section 54 provides that licences.may.be express or implied, section 55 provides that there may be accessary licences, section 56 deals with its tran(sic) sections 57 and 58 deal with the duties of the grantor and Section 59 provides that on a transfer of property, the transferee is not bound by the licence. Then sections 60 to 64 deal with revocation. In our opinion, all that had to be said about the grant and revocation of licences has been provided in sections 52 to 64 of this Chapter. (sic) vary nature of a grant in the grant of a licence is such That the person who grants it can take back the grant.

21. in our view, therefore, Mr. Zaveri's contention, that the licence is irrevocable for either of the two grounds urged by him is not sustainable. If, therefore, the licence was revocable, as we hold it was in this case, the respondent has admittedly put an end to We licence by his notice given to the appellant on May 25, 1959.

22. Mr. Zaveri then wanted to press the point or estoppel. This point was not urged at any stage in these proceedings and we disallowed Mr. Zaveri from pressing this point,

23. For the reasons stated above, we confirm the judgment of the first appellate Court. We are of the view that this second appeal should be dismissed. We accordingly order that this second appeal be dismissed write costs. The civil application for additional evidence there-fore does not survive either in the view we take of the appeal. Second appeal dismissed with costs. No order on the civil application.


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