Amitabha Dutta, J.
1. This is an appeal by the defendant from the decree of the learned Judge, IVth Bench of the City Civil Court, Calcutta in a suit for eviction of an ex-licencee and recovery of arrears of licence fees and electric charges and of mesne profits, which is answered by a claim of tenancy right in the suit property raised in the written statement of the defendant.
2. The facts are reasonably clear from the testimony of the plaintiff and the defendant who are the only witnesses and the letter (Ext. 1) written by the defendant and his companions to the plaintiff in September 1969 before entering into the suit property. The plaintiff and her husband Maj. General S. B. S. Roy lived in Flat No. 64 in the 5th Floor of Queen's Mansions at 12, Park Street, Calcutta of which her husband was a monthly tenant at a rent of Rs. 265/-per month under the Life Insurance Corporation of India. The said flat comprised three rooms, drawing room, bath room and kitchen. The plaintiff's husband died in 1969. Her son was then in London. At the request of her son the plaintiff decided to go to him for a short period. Gen. Cariappa and his brother K. M. Nangappa, were friends of plaintiff's husband. Mr. Nangappa told the plaintiff that as she was going to London she might permit his relative, the defendant and the defendant's two friends to stay In her flat as licencees during the period of her absence from Calcutta and that they would vacate after her return from London. The plaintiff agreed. Thereafter in September 1969 the defendant and his two friends wrote the following letter (Ext. 1) to the plaintiff :--
'Mrs. Leila Rinha Roy Dated :
64, Queen's Mansions,
12, Park Street,
Your premises No. 64. Queen's
With reference to our discussions with you we confirm the following :--
(1) You should grant us leave and licence to occupy the above premises for a period of six months only with effect from the 16th of September, 1969.
(2) We shall pay you as licence fee Rs. 600/- per month and we shall also pay all bills pertaining to electricity, water, gas and telephone used and/or consumed by us during the said period.
(3) We undertake to leave the premises on the expiry of the said six months and make over the said premises to you including all the furniture as per list attached.
(4) It is clearly understood that this agreement will in no circumstances be construed as tenancy and that the period of the licence shall stand determined on the expiry of the said six months unless extended by mutual agreement.
(5) The undersigned shall be responsible jointly and severally for the payment of the licence fee and other abo-venoted dues.
This letter is sent to in duplicate and we would request you to sign the duplicate copy in signification of your acceptance of these terms.
C. B. Abyshekar
(C. M. Abyshekar)
P. N. Devaya (P. N. Devaya)'.
There is a list appended to the letter which enumerates roomwise articles of furniture, fixtures, refrigerator, kitchen-wares and crockeries of the plaintiff which remained in the flat. The defendant and his friends came to occupy the flat with nothing except their personal belongings. The defendant took charge of the articles of the plaintiff kept in the flat as mentioned in the said list. He also used the telephone of the plaintiff in the flat. The plaintiff after staying with her son for about six months in London returned in the beginning of 1970 and joined the post of Matron and Administrative Officer of the Staff College of Allahabad Bank on the basis of a contract of service under which she was also provided with quarters at Alipore in Calcutta. She served in that post from the beginning of 1970 till October, 1974 when the contract of service expired. In the meantime, the defendant got married and his friends left the suit flat in 1972. The defendant brought his wife to the flat and became the sole occupier with his family. During her stay in the quarters provided by Allahabad Bank, the plaintiff used to come to the suit flat in order to keep or take away articles. As she was expecting her son's visit she got a bathroom constructed with the permission of the landlord for which her rent was enhanced by 10%. In October, 1974 the plaintiff returned to the suit flat and the defendant vacated one room and a bathroom for her use. The plaintiff's version is that at the request of the defendant she allowed him to occupy the remaining portion for some more time and that she also used the drawing room with the defendant. Out of two sets of keys of the main door to the flat, one set remained with the plaintiff. The charges for electricity were to be borne half and half by the parties. Towards the end of 1975 the plaintiff asked the defendant to vacate the flat as her son was coming from London. The defendant refused. The plaintiff's son came to Calcutta in December 1975 and returned to London in January 1976. The plaintiff through her advocate sent a notice dated 14-6-1976 (Ext. 2) in which it was stated in paragraph 1 :--
'That my client granted you leave and licence to occupy four rooms and a bathroom at No. 64, Queen's Mansions, 12, Park Street, Calcutta on the definite understanding that he would vacate the same as and when required by my said client.'
The defendant was asked to vacate thesuit flat by the said notice onthe date ' next after the dateof receipt of the notice. The defendantreceived the notice on 19-6-1976. Thedefendant did not reply to the said notice.But he has claimed in this evidence thathe and his friends were joint tenants inthe flat and after his friends left hecame to occupy the flat as the sole tenant. He says that he has been in exclusive possession of the flat since then.But he has admitted in his cross-examination that he has nothing to show thathe occupies the flat as a tenant.
3. The learned Judge of the trial court has decreed the suit for eviction of the defendant holding that the defendant was a licencee in the suit property as the intention of the parties was to create a licence and not a lease. hE has awarded Rs. 2653/- as arrears of licence fees up to 19-6-76, Rs. 462/- as arrears of electric charges and mesne profits at Rs. 400/- per month from 20-6-1976 to the plaintiff.
4. It has been argued on behalf of the appellant that in the facts and circumstances of the case the learned Judge ought to have held that the defendant is a tenant and was not a licensee in the suit property. In this connection reliance has been placed on the decisions of the Supreme Court in Associated Hotels v. R. N. Kapoor : 1SCR368 , Associated Hotels v. S. B. Sardar : 2SCR548 , Sohan Lal Naraindas v. Laxmidas : 3SCR319 , Qudrat, Ullah v. Municipal Board : 2SCR530 and the decisions of Court of appeal in London in Errington v. Errington (1952) 1 All ER 149 and Cobb v. Lane (1952) 1 All ER 1199. On the other hand the learned advocate for the respondent has relied on the decisions in M . N. Club-wala v. Fida Hussain : 6SCR642 , E. Moss Ltd. v. Brown (1946) 2 All ER 557 and Megarry's Rent Acts Vol. I Pp. 54-59.
5. The principles flowing through the current of decisions for determining whether an agreement creates a licence or a lease are more or less well settled. In Errington v. Errington (1952) 1 All ER 149 Lord Denning after referring to the English Cases on the subject observed (at p. 153):
'The result of all these cases is that although a person who is let into exclusive possession is prima facie to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the Land he will be held only to be a licencee'.
In Megarry's Rent Acts Vol. I at p. 55 the learned Author quotes the observations of Lord Denning in Cobb v. Lane (1952) 1 All ER 1199 as follows:--
'The question in all these cases is one of intention: did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land? If so, he will be held to be a licencee. It has been said that there is one golden rule which is of very general application, viz., that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind'. (Per Lord Greene M. R. in Booker v. Palmer (1942) 2 All ER 674 at 677). On surrounding circumstances Megarry quotes the observations of Lord Denning in Facchini v. Bryson (1952) 1 TLR 1386 at 1389: 'In all the cases where an occupier has been held to be a licencee there has been something in the circumstances, such as a family arrengement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy.'
6. In E. Moss Ltd. v. Brown (1946) 2 All ER 557 after Mr. Brown the tenant joined the services during the war in 1944, his wife Mrs. Brown who went to Scotland fllowed her two friends to go into exclusive possession of the flat and furniture which the tenant placed in it on payment of a weekly amount, but nothing was said about notice to terminate the arrangement. The Court of Appeal held by majority that the occupants were licencees and no tenants in the flat. Somervill L. J. observed (at p. 5601 that she (Mrs. Brown) was allowing friends to use and sleep in these rooms on the basis that she would come and go when she needed without interfering with what she intended them to have the use of. The fact is that Mrs. Brown was to be able to go back when she wanted with access to the family property which was presumably in this premises, take away what she wanted and so on. In those circumstances the finding of the County Court Judge that the occupants were licencees was upheld.
7. In Sohan Lal Naraindas v. Laxmi-das : 3SCR319 the learned Judge Shah C. J. delivering the judgment observed after referring to Section 52 of the Easements Act and Section 105 of the T. P. Act:
A licence confers a right to do or continue to do something in or upon immovable property of grantor which but for the grant of the right may be unlawful but it creates no estate or interest in the immovable property of the prantor. A lease on the other hand creates an interest in the property demised.
8. Intention of the parties to an agreement must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement from operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession though not decisive is of significance. M. N. Clubwala v. Fida Hussain Saheb : 6SCR642 .
9. In the present case the circumstances attending the dispensation or arrangement show that the plaintiff's husband's friend Mr. Nangappa (brother of Gen. Cariappa) requested the plaintiff to allow his relative the defendant to occupy the flat with two friends during her absence in London on condition that they would vacate it after six months on her return from London. The plaintiff accepted the request and that is how the arrangement came into existence. So it was an act of sympathetic consideration of the need for accommodation of a relative of the friend of the plaintiff's deceased husband. The arrangement therefore originated from a friendly gesture on the part of the plaintiff. The fixed sum which was payable by the occupier was described in the letter of September 1969 (Ext. 1) containing the terms and conditions of the occupation of the defendant and his friends, as the licence fees. The plaintiff granted receipts describing the payments as service charges. The plaintiff in her evidence has called the amount as rent But even if the payments are called rent the occupier may be a licensee. Calling the payments as rents is not conclusive evidence of tenancy.
10. The contentions are that the facts that the plaintiff did not ask the defendant to vacate the flat after her return from London that she agreed to the continuing occupation of the flat by the defendant for several years thereafter and that she reduced the rent for the flat from Rs. 600/- per month to Rs. 400/-per month and constructed a bath room prior to her occupation of one room in the flat in October 1974, show that the plaintiff intended to let out the flat to the defendant. But it is difficult to accept these contentions. The plaintiff after her return from London got a contract of service with quarters at Ali-pore where she had to stay in connection with her service till October 1974. She did not require the suit flat during that period. So for quite understandable reasons the plaintiff did not call upon the deferdant to vacate the flat. But during her stay in the bank quar- ters she used to come to the suit flat to keep or take away her articles. One set of Keys to the main entrance door of the flat was with the plaintiff. She constructed a bath room in the flat as her son was expected to come from London sometime in 1972 although the visit did not ultimately materialise. Reduction of the monthly amount payable by the defendant from Rs. 600/- to Rs. 400/- for his vacating one room that was required by the plaintiff and sharing of electric charges are concessions which indicate sympathy and reasonableness on the part of the plaintiff in her dealings with a relative of her husband's friend. The relations between the parties were obviously cordial during that period. The plaintiff says that there was no fresh agreement with the defendant and the old arrangement continued (subject to such concessions.) She allowed the defendant to stay on for some more time at his request. Her version is quite probable. The defendant also does not say that there was any fresh agreement with the plaintiff although he denies that he requested the plaintiff to allow him to stay in the flat for a further period. But he admits that there was nothing in writing to show that he occupies the suit flat as a tenant It is also not a natural human conduct that the plaintiff would risk her own eviction from the flat under the provisions of the West Bengal Premises Tenancy Act 1956 by subletting the premises without a written consent of the landlord.
11. Considering the circumstances attending the inception of the arrangement arising out of the plaintiff's sympathy for a relative of her late husband's friend under which the defendant and his two friends, all bachelors came to occupy the flat with entire furniture, fixtures, refrigerator, telephone, kitchenwares and crockeries of the plaintiff kept in the flat, on the understanding that the defendant would have to vacate it on demand after six months without any provision for notice, the plaintiff's access to the flat during her stay in the bank quarters, her retaining one set of keys to the main entrance door of the flat, the concessions granted by the plaintiff in reducing the rate of monthly payments and sharing of electric charges after the defendant vacated one room and bath room for the use of the plaintiff with a request to grant him some more time to vacate the flat, we find the aforesaid circumstances and conduct of the parties, show that the defendant had a personal privilege with no interest in the flat in suit. The learned Judge has rightly held that he was a licencee and the lincence was validly terminated with effect from 19-6-1976. There is no challenge to the other findings of the learned Judge on the footing that the defendant was a licencee.
12. The appeal is therefore dismissed. The judgment and decree of the trial Court are affirmed. No order is made as to costs.
13. I agree.