PROPERTY LAW I SYNOPSIS-BC0140018

LICENCE
INTRODUCTION:
A licence is a personal right granted to a person to do something upon immovable property of
the grantor and does not amount to the creation of interest in the property itself 1.It is purely a
permissive right and is personal to the grantee. It creates no duties and obligations upon the
persons making the grant and is, therefore, revocable except in certain circumstances
expressly provided for in the Indian Easements act, 1882 itself. The licence, when granted,
has not other effect to confer liberty upon the licence to go upon the land which would
otherwise be lawful.
AIMS AND OBJECTIVES:
The aim of this research is to understand what is a licence under the Indian easements Act,
1882 and who can grant licence and whether this grant can be expressed or implied. The
researcher will also deal with issues like what are the grantors duties and rights under Section
52, 53 and 54 of the Indian easements Act, 1882 and what are the rights of the licence and
when can licence be revoked and when it is deemed to be revoked The main objective of the
research is to study and analyse the concept of Licence under the Indian easement Act, 1882.
RESEARCH QUESTIONS:
The researcher will also deal with issues concepts like difference between bare licence and
licence coupled with a grant or interest in land
1. Whether, an oral licence is valid and does it confer any rights over the property?
2. Whether parties entering into a partition agreement by dividing their property and
giving themselves certain rights would amount to licence?
3. Whether there is any difference between licence under English law and Indian law?
4. Whether a document which gives only a right to use the property in particular way or
under certain terms be called as licence?
5. Whether, there is a difference between lease and licence and what are the
requirements of a valid lease and licence?
CASE LAWS:
1 Mini Peter Philips v. Dina J. S. Fanibanda, 2008 (1) AIR Bom. R. 475

The Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor2 summed the concept
of Licence as under:
Under the aforesaid section, if a document gives only a right to use the property in particular
way or under certain terms while it remains in the possession and control of the owner
thereof, it will be a licence. The legal possession, thereof, continues to be with the owner of
the property, but the licence is permitted to make use of the premises for a particular purpose.
But for the permission, his occupation would be unlawful. It does not create in his favour any
estate or interest in the property.
Cubb v. Lane3, Lord Denning said thatThe question in all these cases is one of intention: Did the circumstances and 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.
The definition in Section 52 of the Act referred to above does not refer to exclusive
possession. If there is no exclusive possession then the arrangement cannot be a lease and
must be a licence. The general rule is that the Court will look at the substance of the
agreement rather than the form in which it is expressed.
A licence by a mortgagee or co-tenant who is lawfully in the sole possession and enjoyment
of the property, to do a thing which he could himself lawfully do is a valid licence4.
Anyone who can transfer property even if he is not the owner can grant a licence. The licence
can also be revoked by such a person5.
The grant of licence may be express or implied which can be inferred from the conduct of the
grantor.
2 AIR 1959 SC 1262
3 (1952) 1 All ER 1199 (1202)
4 Illustration (c) to Section 8 of Indian Easements Act
5 Municipal Committee Ambala v. Lal Chand 1969 Cur. LJ 580 (Punj.)

SOURCES:

Primary sources:

Indian Easements Act,1882

Secondary sources:

VepaP.Sarathi, Law of Transfer of Property Fifth Edition, Easetern Book Company

G.C.V.Subba Rao, Law of Transfer of Property 7th edition, ALT Publication