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1989 DIGILAW 264 (KER)

Ananthakini Padmanabha Kini v. Kamalavathy Animal

1989-07-11

K.P.RADHAKRISHNA MENON

body1989
JUDGMENT :- Plaintiff is the appellant. 2. The property in dispute belonged to one Narasimba Pai. After his death, the heirs partitioned all his properties including the property in dispute and as per the said partition, the property in dispute was put in the possession of Saraswathi Animal (widow of Narasimha Pai) in lieu of her maintenance. Saraswathi Ammal in her turn leased this property to Ananthakini and on the death of Ananthakini, the leasehold right devolved on his son, the plaintiff. The defendant is the sister of the plaintiff. The plaintiff and the defendant entered into an agreement evidenced by Ext.A3 dated 15-5-1974 and as per this agreement the property has been put in the possession of the defendant so that she can cultivate the same and appropriate the produce towards her maintenance until the happening of the contingency contemplated thereunder. 3. The defendant claiming herself to be a cultivating tenant of the holding (she traces her possession to an oral lease granted by the family of the plaintiff in the year 1-9-73) filed O.A. 238/73 under S.72B, K.L.R. Act. The appellant got himself impleaded in the said proceedings and contested the matter. The O.A. ultimately was dismissed on 29-5-1976. The defendant thereafter, in the year 1976, filed another O.A. 697/76 again under S.72B and again without impleading the appellant. This O.A. was allowed. The appellant, with leave of the Appellate Authority filed an appeal, A.A. 487/77 challenging the said order. The appeal was allowed and the matter was remanded to the Tribunal for a de novo consideration. The Tribunal went into the question afresh and dismissed the application. The said order has become final. 4. The filing of the above O.As. according to the appellant, provided him with the cause of action to institute the suit for recovery of the property. A reference in this connection to the cause of action pleaded in the plaint is profitable: (Matter in vernacular omitted - Ed.) 5. The case set-up by the appellant is that/the agreement Ext.A3 evidences only a licence and since the defendant contravened the conditions of the licence he was constrained to revoke the licence by the lawyer's notice dated 4-1-1980. Since the defendant failed to surrender possession of the property the suit was instituted. The case set-up by the appellant is that/the agreement Ext.A3 evidences only a licence and since the defendant contravened the conditions of the licence he was constrained to revoke the licence by the lawyer's notice dated 4-1-1980. Since the defendant failed to surrender possession of the property the suit was instituted. The case set up by the defendant briefly stated is that Ext.A3 evidences a licence coupled with interest and hence irrevocable during her lifetime. The plaintiff therefore cannot maintain the suit. 6. The trial Court after considering the various aspects of the respective cases put forward by the parties, held that Ext.A3 is not a licence but a transaction under which the defendant got an interest over the plaint property by way of possession and consequently dismissed the suit. He has also been held that the intention of the parties discernible from Ext.A3 was to create a life interest. On appeal the Appellate Court confirmed the judgment and decree of the trial Court and the second appeal is filed against the judgment and decree of the Appellate Court. 7. Referring to the recitals in the document and stated hereunder :- (Matter in vernacular omitted - Ed.) The learned Counsel for the defendant argues that Ext.A3 has created a life interest in the defendant and as such the transaction is not a mere licence. In any event, it must be said to be a licence coupled with interest. That being the position, the learned Counsel submits, the defendant cannot be evicted because she is entitled to be in possession during her lifetime. The case of the defendant therefore is that Ext. A3 evidences a transfer of an interest in immovable property entitling her to be in possession during her lifetime. To put it differently, an interest in immovable property for the enjoyment of the defendant is created by Ext.A3. If that be the position, the transaction evidenced by Ext.A3 must be treated as a licence coupled with interest, the counsel submits. 8. The question thus arising for consideration is, whether Ext. A3 agreement on its true construction operated as a licence pure and simple distinguished from a licence coupled with a grant of interest in the soil and hence irrevocable. 9. Before we find an answer to the question, I shall state the law. 8. The question thus arising for consideration is, whether Ext. A3 agreement on its true construction operated as a licence pure and simple distinguished from a licence coupled with a grant of interest in the soil and hence irrevocable. 9. Before we find an answer to the question, I shall state the law. Licence is defined as follows:- "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." (See Section 52 of the Indian Easements Act). A licence thus creates a personal right which is permissive and legalises certain acts which would otherwise be unlawful. It does not create an interest in immovable property unless it is one coupled with interest. When it becomes one coupled with interest it becomes irrevocable. (See Section 60). In all other cases the grantor can revoke the licence at his will. Broadly stated if a person grants the use of a land only for certain purposes (in contradistinction to the exclusive use of the land by the grantee) retaining in himself the power to use the land as he pleases, then it may be a grant of only a licence. To put it differently if the object of such grant is not the beneficial enjoyment of the land by the grantee it is only a licence although apparently the grantee is in enjoyment of the land. The distinction between a licence pure and simple and a licence coupled with an interest is that a bare licence without anything more is always revocable at the will of the licensor and it is also not assignable whereas in a case of a licence coupled with a grant of interest the licencer cannot in general revoke it so as to defeat the grant to which it is incident. A bare licence in the beginning can become irrevocable when the licensee acting upon the licence executes a work of a permanent character and incurs expenses in doing so. 10. We will now consider whether the transaction in question evidences a bare licence or a licence coupled with an interest as contended for by the defendant. A bare licence in the beginning can become irrevocable when the licensee acting upon the licence executes a work of a permanent character and incurs expenses in doing so. 10. We will now consider whether the transaction in question evidences a bare licence or a licence coupled with an interest as contended for by the defendant. A reference in this connection to the following recitals in the agreement is relevant. (Matter in vernacular is omitted - Ed.) It is clear from these recitals that the defendant has no manner of right over the property, that the defendant has no right to transact upon the property except to cultivate the same and appropriate the produce and that the defendant has no right to part with possession of the property to strangers. It cannot therefore be said that the transaction grants an interest in the land; it evidences only the grant of a personal privilege with no interest in the land. Applying the principle of law stated above, I am of the view that the transaction in question evidences only a licence pure and simple and not a licence coupled with an interest in the soil. 11. The defendant though only a licensee, filed O.A. 697/76 under S.72B for the purchase of the right, title and interest of the landlord, without impleading the appellant; but at the same time impleading the ultimate landlords Saraswathi Ammal and the children of Gopala Pai. In the said petition the case set up by the defendant was that she was a cultivating tenant under Saraswathi Animal. However in the light of the agreement, Ext.A3, the defendant cannot maintain the petition under Section 72-B. There is thus a breach of the contract on the part of the defendant, which provides the appellant the cause of action for the suit. The suit under the circumstances should have been decreed. 12. I therefore could have straightway decreed the suit but for an additional point raised by the counsel for respondent namely that the plaintiff has not established his title to the property; and, therefore, the suit is not maintainable. Facts to be borne in mind in this regard can briefly be stated thus : The lease in favour of the plaintiff was granted by Saraswathi Ammal who was only a life interest holder. Facts to be borne in mind in this regard can briefly be stated thus : The lease in favour of the plaintiff was granted by Saraswathi Ammal who was only a life interest holder. Saraswathi Ammal, however, has been in possession of the property and that it is so can be seen from the deed of partition evidencing the partition of the properties between the legal heirs of Narasimha Pai, the husband of Saraswathi Animal. Saraswathi Ammal by virtue of the provisions contained in Section 14(1) of the Hindu Succession Act, roust be held to have become the full owner of the property. A reference in this connection to the decisions of the Supreme Court in V. Tulasamma v. Sesha Reddi, AIR 1977 SC 1944 : (1988) 1 SCC 99 and a Full Bench ruling of this Court in State of Kerala v. Gopal, (1987) 1 Ker LT 416 : (1987 Tax LR 631) is profitable. The above point thus does not arise for consideration. The plaintiff therefore is held to be in possession of the property under a regular lease granted by a full owner of the property. The appellant therefore has title to the property. 13. The judgments and decrees of the Courts below therefore are set aside and the suit is decreed as prayed for. But in the circumstances no order as to costs. Order accordingly.