1. This is a reference under Clause 36 of the Letters Patent, arising on a difference of opinion between my learned brothers. Banerjee and D Basu JJ.
2. The point of difference has not been stated by their Lordships but it is clear that, for their ultimate difference on the question whether the present Rule should or should not succeed, the material of immediate conflict between them was whether, to the instant case, the West Bengal Premises Tenancy Act, 1956, would apply, or, more precisely, whether the opposite party No. 1 was a tenant under the petitioner so as to be entitled to apply for fixation of fair rent under the above Act and, in that connection, their Lordships primarily differed on the question whether the document Ext. A was a lease, as understood under the general law.
3. The material facts have been sufficiently stated by their Lordships and it is unnecessary to repeat or reiterate the same. Suffice it to say that Banerjee, J. was of the view that the above document was not a valid lease in law and was ineffective to pass any interest in the disputed premises and, upon it, the opposite party No. 1 could not claim to be a tenant and could not apply for any relief under the West Bengal Premises Tenancy Act, 1956. Basu J. differed and he was of the view that the disputed document, Ext. A. was a valid lease in law and, although it was for a term of five years in the first instance, with an option of renewal in favour of opposite party No. 1 for another five years, and so required registration as a lease, the mere fact that it was not registered as such or registered according to law, would not make it irrelevant and it would be admissible under Section 49 of the Indian Registration Act.
4. On this part of the case, the relevant observations of His Lordship Basu, J. are as follows:
'The primary question i whether there has been any transfer of interest in the property or a mere right to occupy, it for doing certain acts (Cf. Secretary of State v. Karuna, (1907) 11 Cal WN 1053 (1069) ), while the possession and control remains with the owner Emperor v. Sheriff, 1930-32 Bom LR 332=(AIR 1930 Bom 165). It was urged on behalf of the petitioner that since the agreement in question was not registered, there was no transfer of interest in the property and the agreement could not operate as a lease. This plea is of little substance. Assuming that the agreement required registration, non-registration under Section 49 of the Registration Act has only this effect that the opposite party cannot have any relief to assert his interest in the disputed property on the basis of the agreement as his deed of title. In the present case, he does not claim any relief regarding his title to the property, but simply wants to have the rent payable under the agreement to be replaced by a standard rent under the West Bengal Premises Tenancy Act. Even though the agreement is unregistered, it is permissible to look into its recital to determine whether the relationship between the parties was one of landlord and tenant, or, in other words whether the nature of possession of the opposite party No. 1 was that of a tenant. (Vide Varadha Pillai v. Jeevarathammal, 46 Ind App 285 (292) = (AIR 1919 PC 44 at p. 47) ) so as to attract the provisions of the Act.'
His Lordship was further of the opinion that the West Bengal Premises Tenancy Act, 1956, intends to bring within its scope even relationship between parties, which may not be strictly coming within the definition of a lease under Section 105 of the Transfer of Property Act. He, however, was careful enough to add as follows:
'I do not, however, want to rest my judgment on the sole ground that the contract before us stipulates payment of rent by opposite party No. 1 to the petitioner from whom the opposite party No. 1 acquired a right to use the disputed property inasmuch as in my opinion the relationship created by the Agreement in question is that of a tenant under a lease if Section 105 of the Transfer of Property Act was applied to it.'
5. With all respects, I am unable to agree with Basu, J. that the disputed document, Ex. A, would be a lease under the Transfer ot Property Act and would give the opposite party No. 1 the status of a tenant under that Act, and, necessarily also, under the West Bengal Premises Tenancy Act, 1956, so as to entitle him to apply for fixation of fair rent under that Act. The document, in my opinion, appears to represent a transaction, analogous or somewhat akin to cases of railway stalls, and it substantially falls, in my opinion, within the decision of the (East) Punjab High Court, reported in Dominion of India v. R. B. Sohan Lal, AIR 1960 EP 40. On that footing, the document (Ext. A) would represent a case of licence. In any event, it would not be a lease and would not attract the provisions of the West Bengal Premises Tenancy Act, 1956.
6. The distinction between a lease and a licence has been the subject-matter of various decisions and, according to the recent rulings under this branch of the law, as developed in the recently decided cases Vide, in this connection, the unreported decision of this Court Messrs. Dunlop Rubber Co. of India Ltd. v. R. Dutta, F. A.'s Nos. 489 and 490 of 1960, D/- 5-7-1966 (Cal) the distinction, in spite and irrespective of exclusive possession of the grantee under the particular document, turns on the actual intention of the parties.
7. In the instant case, the document (Ex. A) was registered by the parties as an agreement and not as a lease. Indeed, that has been noticed by Basu, J., although he has held that its non-registration as a lease 'would not make it irrelevant' and, notwithstanding such non-registration, it would be admissible to give the grantee the status of a tenant under the decision of the Judicial Committee in 46 Ind App 285=(AIR 1919 PC 44) referred to above. In my view, this common and deliberate action of the parties is Itself expressive and contains the clearest expression of their intention in the matter in the light of the principle, underlying the decisions of this Court, reported in Najibulla Mulla v. Nusir Mistri, (1881) ILR 7 Cal 196 and Jagatdhar Narain Prasad v. A. M. Brown, (1906) ILR 33 Cal 1133, sufficiently and substantially re-affirmed by this Court in Indra Bibi v. Jain Sirdar Ahiri, (1908) ILR 35 Cal 845. Judged by the test of intention, then, the document (Ex. A) would not represent the transaction of a lease, whatever else be its nature. In my view, as I have already indicated above, it represents more a case of licence. In any event, it is not a lease, and, accordingly, the opposite party No. 1 cannot claim the status of a tenant under that document and cannot claim relief under the West Bengal Premises Tenancy Act, 1956.
8. In the judgment of Basu, J. His Lordship was pleased to observe, agreeing with the learned Judge in the Court of appeal below, that the intention of the parties was to create a lease and this document (Ex. a) was really a camouflage, but, in that view, the parties would be guilty of a fraud upon the statute and, particularly, in the context of Section 14 of the West Bengal Premises Tenancy Act, 1956, which clearly prohibits the creation of a sub-tenancy after the coming into operation of the above statute, the parties cannot, by fraud, create or claim to create and cannot be permitted to create such a status. It will, indeed, be a fraud not only on the above statute but also on the law of registration, which would make its registration invalid for purposes of law. If the registration be invalid, it must be deemed to be an unregistered document and, as, obviously, for the creation of the intended lease for five years or more,--if there was really such an intention,--a registered document would be necessary--this unregistered document would not be available or relevant for creating any tenancy or any relationship of landlord and tenant between the parties. On this part of the case, I am also, with respect, unable to agree with Basu J. that Varadha Pillai's case, 46 Ind App 285= (AIR 1919 PC 44) would have the effect of creating a relationship of landlord and tenant between the parties under a document, which is invalid as a lease on account of non-registration. Under the said decision, all that was held was that such a document would be admissible in law to show the nature and character of the grantee's possession, or, in other words, that the character of that possession should be that of a lessee but that would not, necessarily, be under a valid lease and would not entitle the grantee to assert any right of a tenant until the expiry of the relevant prescription period, and, only if that possession continued for the requisite period of time, in the light of that possession, the party (grantee) may acquire the status of a lessee by adverse possession or prescription and assert a tenant's rights. Nothing more was decided or laid down by their Lordships in the above case, as, otherwise, a transaction of lease, which is required to be created by a registered document, may come into existence even in the absence of such a document, merely by the intended lessee's taking possession of the property in question under the document or by the grantor's delivering possession of the same thereunder
9. I would, accordingly, hold that, in the instant case, the relationship between the parties would not be as between landlord and tenant and the West Bengal Premises Tenancy Act, 1956, would not apply to it, and the Opposite Party No. 1 cannot claim any right under that statute
10. With the above expression of opinion, I would send back the records to the learned Chief Justice for further appropriate action under the law
11. There will be no order for costs, sofar as this reference is concerned.