ABDULRAHIMAN Vs. TIRUR MUNICIPALITY

JUDGEMENT

(1.) Petitioners are petty traders. They have taken on rent the shop rooms of first respondent Municipality. It is also stated in the Original Petition that they are in possession of the respective rooms for the past several years. It is also stated in the Original Petition that first petitioner was holding the room Nos. 8 and 9 on a monthly rent of Rs. 573/- and 608/- which was subsequently enhanced to Rs. 678.60 and 729.60 respectively. With regard to the rent paid by others also details are mentioned in the Original Petition itself. Specimen copy of the agreement is produced as Ext. P1. In the agreement the arrangement is termed as licence. The rooms were constructed by the Municipality and the terms of the licence provided payment of a non refundable premium and monthly rent. In Para.4 of Ext. P1 the word 'rent' is used. In Para.9(1) the amount is called as 'monthly licence fee rent.' In Para.8 it is stated as follows:

(2.) The only question to be considered is whether Ext. P1 agreement creates a 'lease' within the meaning of S.2(1) of the Kerala Stamp Act so as to attract stamp duty as provided under Art.33 of the Act. The word 'lease' has acquired a meaning in the legal and commercial circle in view of the definition of lease in Transfer of Property Act, 1882 unless otherwise defined. Since only an inclusive definition is given in the Stamp Act, definition of lease in the Transfer of Property Act has to be gone through to find out the transaction in a lease or licence. In S.105 of the Transfer of Property Act the 'lease' is defined as follows:

(3.) A reading of Ext. P1 clearly shows that even though the word 'licence' is used in the agreement, possession of the rooms in question is transferred to the petitioners for the period of the agreement exclusively, even though Municipality can enter into the rooms with notice periodically for inspection and carrying out the repairs. It is not a case where the petitioners were given right to enter and do something for a particular time. It is also not an agreement to collect and remove something. The decision of this Court in Anandan v. Dy. Director of Panchayats ( 2000 (1) KLT 1 ) also may not be of much use in this matter on the facts of the case, as it deals with agreements for 'profit a prendre'. Here the rooms were given to the petitioners on monthly rent and they are in exclusive possession and even though the word licence is used, it is actually a lease. Nomenclature in the agreement may not be decisive in all respects when the agreement is construed as a whole. Ext. P1 is not merely an agreement to enter into the rooms and do something thereon. Written document which contains an undertaking to pay rent for the premises occupied by the executor as specified therein to the landlord every month is lease notwithstanding the fact that the word licence is used in the agreement. Apex Court in Anthony v. Ittoop ( 2000 (3) KLT 123 ) held as follows: