Capt.
B.V.D Souza Vs. Antonio Fausto Fernandes [1989] INSC 221 (1 August 1989)
Sharma,
L.M. (J) Sharma, L.M. (J) Verma, Jagdish Saran (J)
CITATION:
1989 AIR 1816 1989 SCR (3) 626 1989 SCC (3) 574 JT 1989 (3) 265 1989 SCALE
(2)197
ACT:
Goa, Daman and Diu Buildings, (Lease, Rent and Eviction) Control Act, 1968: Section
56--Bar of Court's Jurisdiction.
Rent
Control--Deed--Lease or Licence--Determination of Intention of parties--The
real test--Test of exclusive possession-Whether relevant.
Civil
procedure Code, 1908:Section 100 Document--Whether lease or licence--Concurrent
findings by Trial Court and First Appellate Court--Binding effect of in second
appeal before High Court.
HEAD NOTE:
The
respondent-landlord inducted the appellant into the suit premises pursuant to
an agreement. The agreement was described as agreement of leave and licence,
the parties as licensor and licensee and the rent as compensation for use and
occupation, and it was provided that the appellant (i) shall pay monthly rent
regularly on or before the 5th day of each consecutive month; (ii) shall not
sub-let, under-let or part with possession nor shall keep the premises vacant
for more than three months without the consent of the licensor;
(iii) that
on the expiry of the deed, it shah be renewable at the will of the licensee.
Several
years after the expiry of the above agreement the respondent instituted a civil
suit for a decree of eviction of the appellant on the ground that the appellant
was in occupation as a licensee and has illegally refused to vacate. Rejecting
the plea of the appellant that he was a month to month tenant protected by the
provisions of, the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act,
1968 and that the suit was barred by section 56 the Trial Court passed a decree
for eviction which was confirmed in appeal by the District Judge.
The
second appeal filed by the appellant was also dismissed by the High Court
holding that it was concluded by concurrent findings of fact. Hence this
appeal.
Allowing
the appeal, and setting aside the decree of the Courts below, 627
HELD:
1. The findings of the Courts below were not those of fact so as to be binding
on the High Court under section 100 of the Civil Procedure Code. The case has
to be decided on the nature of possession of the appellant which is dependent
on a correct interpretation of the document. [628G]
2. 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 his 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. [630H, 631A]
3. For
ascertaining whether a document creates a licence or lease, the substance of
the document must be preferred to the form. 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. The test of exclusive
possession is not irrelevant but at the same time it is not conclusive. If the
party in whose favour the document is executed gets exclusive possession of the
property, prima facie he must he considered to he a tenant;
although
this factor by itself will not be decisive.
[629A-B-C,
630B-C] Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R. 368; Sohanlal
Naraindas v. Laxmidas Raghunath, [1971] 3 S.C.R. 319; applied.
Shell-Mex
and BP Ltd. v. Manchester Garages Ltd., [1971] 1 All E.R. 841; explained
4. In
the instant case, the terms of the deed are not consistent with the
respondent's case of licence, and indicate that an interest in the property was
created in favour of the appellant in pursuance of which he was put in
possession with a right of renewalThe 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 agreement.
There was no relationship or friendship between the parties, which would have
induced the respondent to allow the appellant to occupy the building. Realisation
of rent was the sole consideration. The description of the parties as licensor
and 628 licensee or the rent as compensation does not carry too much weight.
The agreement was in reality a document of lease, and the appellant has been
enjoying the exclusive possession in the capacity of month to month tenant. The
suit filed by the respondent was, therefore, not maintainable. [629F, 631 B-C,
D-E]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 6 184 of 1983.
From
the Judgment and Order dated 28.7.1983 of the Bombay High Court in S.C.A. No.
5/B/1982.
S.K.
Mehta, Dhruv Mehta, Aman Vachher and Atul Nanda for the Appellant.
S.K. Dholakia
and Praveen Kumar for the Respondents.
The
Judgment of the Court was delivered by SHARMA, J. The only point involved in
this appeal is whether the document (Ext. 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 s. 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 s. 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 Ext.
20.
3. The
document Ext. 20 has been described as an agreement of 629 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, [1960] 1 SCR 368, 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 it self will not be decisive. Judged in this light, there does not
appear to be any scope for interpreting Ext. 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 indicate 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, underlet 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 subletting can
arise only by a tenant. If a licensee inducts any person in the property as his
tenant, it cannot be described as subletting. 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 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
of India Ltd. v. R.N. Kapoor, [1960] 1 SCR 368 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 inspite of
their description as licence deeds, the appellant's 630 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, streneously, contended that the
test of exclusive possession is an out dated 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 MR in Shell-Mex and BP Ltd. v.
Manchester Garages Ltd., [1971] 1 All E.R. 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 cl. 19 in Sch. 1
which Lord Denning MR 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 631 the tenant from the exploitation
of the landlord, who being in the dominating position is capable of dictating
his 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 (Ext. 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.
7. For
the reasons mentioned above, we hold that Ext. 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, Rent 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.
T.N.A.
Appeal allowed.
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