(1.) In this suit for the recovery of Rs. 53.000/- an objection to the admissibility of an agreement was raised by the learned counsel for the defendant at the time of recording of the statement of witness scribe of the document produced by the plaintiff. Mr. Gupta contented that the document in question was necessarily to be registered under the provisions of section 17 of the Registration Act. According to him as the document was not so registered it was not admissible in evidence. The learned counsel for the plaintiff however contented that the document was a deed of licence and as such was not required to be registered under the provisions of the registration Act. The statement of the scribe witness was therefore, not recorded in full. Arguments have been addressed by both the learned counsel on this point.
(2.) Whether the document was a lease or only a licence shall have to be decided on a reference to the contents of the deed itself. For this purpose the form of the document may be looked in to but the form alone would not be of as much help as the substance of the document would be. It is the intention of the parties that would determine the character of the deed and it will be from the terms and conditions of the document itself and also from other attending circumstances and the conduct of the parties that would be the main factors to be taken in to consideration for correct interpretation of the deed. There is no gainsaying the fact that if the document creates an interest in the property it is a lease but if it only given permission to another person for making use of the property of which the legal possession continues with the owner, it is a licence. The transfer of exclusive possession by itself may not be enough to establish that the document created a lease as there may be circumstances that may negative such as impression. There is clear distinction between the concept of lease and that of the licence. The distinction has now been well brought out in a number of Supreme Court judgments such as AIR 1959 S. C. 1262, 1976 (3) S. C. Cases 485, 1976 (3) S. C. Cases 7512, A. I. R. 1965 S. C. 610, The consensus of judicial opinion in this regard now appears to be that the determining factor as to whether a document created a lease or was a license was to ascertain from the terms and conditions of the document the intention of the parties.
(3.) In para 27 of the judgment of the Supreme Court reported in A. I. R. 1959 S. C. 1262 after stating that there was a marked distinction between a lease and a licence and after noting the definition of both these concepts, it has been laid down as follows :