PROPERTY LAW

THE TAMIL NADU NATIONAL LAW SCHOOL

PROPERTY LAW PROJECT
ON
THE CONCEPT OF LICENSE UNDER INDIAN EASEMENTS ACT,1882

SUBMITTED TO
Prof. MOHAMMED AZAD

SUBMITTED BY,
N.BAVITHRAN
(BC0140018)

Contents
CHAPTER 1: INTRODUCTION.................................................................................... 5
1.1 DEFINITION OF LICENCE.................................................................................. 5
CHAPTER 2.......................................................................................................... 8
2.1 Granting of Licence............................................................................................. 8
CHAPTER 3............................................................................................................ 10
KINDS OF LICENCE................................................................................................ 10
3.1 Bare Licence.................................................................................................... 10
3.2 Licence coupled with a grant or interest in land.........................................................11
CHAPTER 4............................................................................................................ 12
DIFFERENCE BETWEEN LICENCE AND LEASE.........................................................12
CHAPTER 5............................................................................................................ 18
CONCLUSION........................................................................................................ 18
BIBLIOGRAPHY..................................................................................................... 19

THE CONCEPT OF LICENSE UNDER EASEMENTS ACT,1882 AN OVERVIEW

Abstract: Property is perhaps the most important and the most complicated and extensive
branch of modern law. Under, the rights, duties and obligations of the parties dealing with
any kind of property needs to be understood properly. In the following study, the author
has made an attempt to explain the meaning of licence and how a licence is granted in
India. In India, Indian Easements Act of 1882 governs such transactions. Section 52, 53
and 54 are the relevant provisions to understand this concept. The researcher has also
attempted to differentiate between leases and licence .The main difference between a
license and a lease is that a license does not create a right in property itself, therefore
eviction is practically immediate and easy. It is important to have an understanding of the
difference between a lease and a licence under general law so that one knows what one is
dealing with in any particular case.
Keywords: Licence, Personal right, Easement, Grantor, Grantee, Lease,

CHAPTER 1: INTRODUCTION

1.1 DEFINITION OF LICENCE

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. A licence may be express or
implied in accordance with the way the permission was granted. An everyday-life example of
implied licence is in the case of a shopkeeper in the invitation to customers to enter his
premises to do business.
In contrast express licences govern more specific situations where the permission has been
expressly directed towards a particular individual. An example is where owner invites guests
1 Mini Peter Philips v. Dina J. S. Fanibanda, 2008 (1) AIR Bom.

for dinner or to stay in a room on his property. The licence governs only the specified period
of the stay and any re-entry after that period without further permission would constitute
trespass.
It is important to note that a person cannot grant a licence to himself nor to himself jointly
with another. Therefore, it must be granted by an owner of the property who is different from
the licensee.
A licence in the law of land is ordinarily a permission merely to do something on or to the
detriment of the land of the giver of the licence, the licensor. Occasionally it is a permission
to interfere with an easement or profit a prendre belonging to the licensor. It creates a
privilege in favor of the licencee2.
A licence may be oral in which case, terms, conditions and the nature of the licence, can be
gathered from the purpose for which the licence is granted coupled with the conduct of the
parties and the circumstances which may have led to the grant of the licence 3. Every licence
is governed by the provisions under the Easements act. According to some scholars, the legal
instrument of License in immovable properties was developed to deal with the legal
complications of lease and rental rights under Indian law. In particular, this legal instrument
was developed to enable property owners to restrict lessees and evict them more easily. Still,
many property owners that intended to protect themselves by entering a leave and license
agreement (i.e. a license agreement to use an immoveable property for a certain purpose),
find themselves facing court decisions ruling that their agreement was in fact a lease
agreement. Some of the mistakes made by such property owners may be avoided.

2 Charles E. Clark, Licences in Real Property Law, 21 Columbia Law Review 757-782 (1921)
3 Ram Sarup Gupta v. Bishun Narain Inter College & Ors., 1987 AIR 1242

A licence does not confer an interest or property in the thing, and though it may be coupled
with a grant which conveys an interest in property, licence by itself does not confer any
interest4. Where the parties entered into a partition agreement and divided the property giving
themselves certain rights, it would not amount to a licence5.
1.2 THE EFFECT OF A LICENSE
Whenever a licence is granted, it will be expected to give minimal rights to the licensee.
Therefore, he has no interest in the land and the licence establishes no way of accruing such.
It merely prevents him from being a trespasser and no more.
However, in certain situations where the licence is contractual as granted under a contract, the
agreement could identify certain rights given to the licensee. Further, in some cases
difficulties exist in determining whether a person is a contractual licensee or a lessee.
Whenever, such issue arises, those are resolved through looking at the substantive terms of
the agreement and not by looking at labels or terminology used. If a contractual licence is
established it provides considerably smaller rights to the licensee were a lease to be found in
place.
1.3 RESEARCH METHODOLGY:
The researcher has applied analytical and qualitative study literature for this study has been
collected from various primary as well as secondary sources primary sources include
judgments of various high court and supreme court. Secondary sources include various books
of eminent authors.
1.4 RESEARCH OBJECTIVES:
4 Mohd. Yusuf v. Suraj Bali Singh, AIR 1916 All. 219

5 P. Perumal Naidu v. Krishnaswamy Naidu, AIR 1998 Mad. 148

The aim of this research is to understand what is a license 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 and how is license
different from lease. The main objective of the research is to study and analyze the concept of
Licence under the Indian easement Act, 1882. The researcher will also deal with issues
concepts like difference between licence and lease as well as easement and licence.
1.5 OUTLINE OF THE STUDY:
The researcher in this paper will be discussing in chapter 1 about the general idea of what is a
license under the Indian Easements Act,1882, in chapter 2 the researcher will give a broad
idea about the kinds of license and differences between them and also a comparative analysis
between the concept licence in India and other countries. In chapter 3 the researcher will be
dealing with the research questions where each question will be a separate chapter and also
how is licence different from that of a lease.
1.6 RESEARCH QUESTIONS:
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, there is a difference between lease and licence and Easement and licence

CHAPTER 2

2.1 Granting of Licence

The provisions relating to granting of licence are the same as those governing the easements.
The provisions relating to granting of licence in India are Sections 53 and 54 of the Indian
Easements Act, 1882.
The two preliminary questions that arise when somebody enters into a Leave and Licence
agreement are who can grant a licence and how a licence is granted.

Section 53 of The Indian Easements act, 1882, states that a licencee may be granted by
anyone in the circumstances and to the extent in and to which he may transfer his interests in
the property affected by the licence. In other words, one cannot grant a licence and one
cannot receive a licence if the licensor does not possess a sufficient lawful interest in the
property therefore its necessary that the licensor has full authority, interest and title over the
property. While section 54 of The Indian Easements act, 1882, states that a licence may be
granted either expressly or impliedly from the conduct of the grantor, and an agreement
which purports to create an easement, but is ineffective for that purpose, may operate to
create a licence. This definition is of higher significance as the owners of properties should
take due attention regarding their intention as their behaviour may create a licence, even
without a formal licence agreement.
Licence is, therefore, a grant of a right to do something upon an immovable without creating
interest in the property. It is therefore, distinguishable from an allied grant such as a lease or
an easement. Both lease and easement create an interest in the property. Licence is only a
permission to do something on an immovable property.

An agreement for licence can be valid and continue to take effect as long as the licensor
continues to enjoy a right, interest and title in the said property. On the termination of the
right of the title, the agreement for licence also comes to an end. In case the licensor is an
tenant, the agreement for licence by him comes to an end with the tenancy6.
In order to grant a licence, it is not always necessary that the licensor is the owner of the
property because the tenancy rights are also immovable rights of the tenant and therefore, he
can grant the licence. But by virtue of Section 53, the tenant can grant the licence subject to
the limitation and the extent to which he may be able to transfer the interest, that is, the
6 Ludhichem Industries v. Ahmed R. V. Peer Mohammad, AIR 1981 SC 1998

tenancy rights. A tenant is empowered to transfer his interest but he cannot do so beyond the
term of his lease7.
It is important to note that a person cannot grant a licence to himself or to himself jointly with
another. Therefore, it must be granted by an owner of the property who is different from the
licensee.
As a grant forms the basis of an easement as well as a licence, an agreement which purports
to create an easement may operate to create a licence only if it is unreasonable for certain
reasons to create such easement. As both an easement and licence legalize acts which would
have been unlawful.

CHAPTER 3

KINDS OF LICENCE
A licence may be of the following two kinds:
1. Bare licence which is purely a matter of personal privilege, and
2. Licence coupled with a grant or interest in the land.
Whether the particular act which is done is a bare licence or something more than a licence
depends on the terms of the transaction between the parties.
3.1 Bare Licence
A bare licence is a personal permission or consent which is granted without consideration, to
enter, or be present upon the land of another. A bare licence is a licence granted gratuitously

7Jaganath v. Jayantilal, AIR 1980 Guj. 41

which is not coupled with the grant of an interest in the land, e.g. the licence which one
necessarily grants to ones guests. Such a licence may be revoked at any time.
A bare licence is a defence to what would otherwise amount to the tort of trespass 8.Where the
licencee oversteps the ambit of the licence, his status will therefore be that of trespasser. If the
person is permitted to enter the land for one purpose but enters for another purpose or while
on the land does something different to which he is not authorised], he becomes a trespasser,
because under such circumstances it is presumed that occupier would not have given his
consent.
If a person is allowed to do the act on the land without interfering with the nature of the land
or without taking any profits from the land, then it is a case of bare licence. Bare licences
may be created expressly or impliedly and no formalities are required.
Bare licenses generally are not assignable that is transferable and are revocable but this bare
licence becomes irrevocable when the licensee acting upon the licence executes a work of a
permanent character and incurs expense in doing so.
3.2 Licence coupled with a grant or interest in land
A licence coupled with a grant or interest in land arises where there is a permission to enter
anothers land for the purpose of removing something from that land (such as timber) 9. This
licence combines the grant of an interest (such as a profit a prendre) with an permission to
enter the land and take benefits out of such land.

8 Goldsack v. Shore, (1950) 1 KB 708

9 Muskett v. Hill (1839) 5 Bing (NC) 694

A license coupled with an interest arises when a person acquires the right to take possession
of property located on someone elses land, A licence may be coupled with the grant of an
interest in the land, as when standing timber is sold on terms that the purchaser is to sever the
timber: the sale of the timber on these terms implies the grant to the purchaser of a licence to
enter the land in order to obtain the timber the same as in case of collection of fishes from
pond. Such a licence is irrevocable as long as the interest to which it is attatched subsists, and
unless otherwise agreed it can be assigned. Some of the examples may be like If the person
is allowed to take exclusive possession of the land, to plant trees over it or collect fisheries
from pond , then it is not a bare licence but it is a licence that is coupled with grant or interest
in land. If the licence gives the licensee a right to make a construction on land and carry out
his business, it is not a bare license but it is a licence coupled with an interest in land. In such
a case, the licensee who has entered possession after execution of the licence, is entitled to
maintain a suit against the trespasser who has dispossessed him.
Licenses coupled with an interest usually are both assignable and irrevocable, until the holder
of the license has had a reasonable time to retrieve the property that gave rise to the license.

CHAPTER 4
DIFFERENCE BETWEEN LICENCE AND LEASE
Section 105 of the Transfer of Property Act, 1882 defines lease as :
A lease of immovable property is a transfer of a right to enjoy such property, made for a
certain time, express or implied, or in perpetuity, in consideration of a price paid or promised,
or of money, a share of crops, service or any other thing of value, to be rendered periodically
or on specified occasions to the transferor by the transferee, who accepts the transfer on such
terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so rendered is called the rent.
The requirements for a lease are:
Exclusive possession of a defined area of land,
For a fixed period (or series of periods) of time,
With the intention to create an estate in land that is an interest in the land itself which can
be assigned or sold.
While a licence as under the Easements Act, 1882 is simply a permission to use land. It
allows someone access to the land of another for an agreed purpose.
Whether a particular transaction is a lease or license, is very important to be known. One of
the main question in order to find whether a transaction is a lease or licence is to at the
intention of the parties and whether there has been any exclusive possession given or not.
The test to determine that whether a transaction is a lease or a licence is:
1. The intention of the parties, which is to be gathered from the terms of the contract. If the
terms are not clear, then the surrounding circumstances shall determine the intention of the
parties.
2. In the absence of a written document and when somebody is in exclusive possession, then
the intention is to be gathered from other evidence such as exclusive possession would be the
most relevant circumstance to arrive at the intention of the parties at the time of making the
lease.
3. If dispute arises then intention to be gathered from the reading of the document as a whole.

4. Lease or licence is matter of contract between the parties. The contract is to be construed or
interpreted on the well-laid principles for construction of contractual terms.
In Booker v. Palmer10, Lord Green stated thatThere is one golden rule to be followed is that law does not impute an intention to enter into
contractual relationships where the circumstances and the conduct of the parties negative any
intention of the kind.
Associated Hotels of India Ltd. vs. R.N. Kapoor11,
A lease is a transfer of an interest in land. The interest transferred is called the
leasehold interest. The Lesser parts with his right to enjoy the property during the
term of the lease and the lessee gets that right to the exclusion of the Lesser.
In case of license, the legal possession continues to be with the owner of the property,
but the licensee 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.
Mrs. M.N. Clubwala v. Fida Hussain Saheb12,
Whether an agreement creates between the parties the relationship of landlord and
tenant or merely that of licensor and licensee the decisive consideration is the
intention of the parties. This intention has to be ascertained on a consideration of all
the relevant provisions in the agreement.

10 (1942) 2 All ER 674

11 SC [1960] 1 SCR 368
12 SC [1964] 6 SCR 642

Chandu Lal vs. Municipal Corporation of Delhi13,

The intention of the parties is the real test for ascertaining the character of a
document.
If a document gives only a right to use the property in a particular way but its
possession and control remains with the owner thereof, it will be a license. In such a
case the legal possession remains with the owner of the property, the licensee being
permitted to make use of the property for a particular purpose.
Exclusive possession does not militate against the concept of a license, if the
circumstances negative any intention to create a tenancy.
A license only makes an action lawful which without it would be unlawful, but does
not transfer any interest in favour of the licensee in respect of the property.
In the case of a license there is something less than a right to enjoy the property in the
licensee, while on the other hand, in the case of a lease, there is a transfer of a right to
enjoy the property.
A bare licensee having no interest in the property cannot maintain an action for its
possession.
Rajbir Kaur and Anr. vs. S. Chokesiri and Co14. The question whether a transaction is a lease
or licence turns on the operative intention of the parties and there is no single, simple litmus
test to distinguish one from the other.
The grant only for the right to use the premises without being entitled to the exclusive
possession thereof operates merely as a licence.

13 AIR 1978 Delhi HC 174

14 AIR 1988 SC 1845

Exclusive possession itself is not decisive in favour of a lease and against a mere licence, for,
even the grant of exclusive possession might turn out to be only a licence and not a lease
where the grantor himself has no power to grant the lease.
Delta International Limited vs. Shyam Sundar Ganeriwalla & Another15
To find out whether the document creates lease or license real test is to find out the intention
of the parties; keeping in mind that in cases where exclusive possession is given, the line
between lease and licence is very thin.
Municipal Corporation of Delhi vs. Pradip Oil Corporation and Anr., 100 (2002) DLT
442 (Delhi High Court, 2002)
A mere license does not create interest in the property to which it relates. Lease on the
other hand, would amount to transfer of property.
License may be personal or contractual. A licensee without the grant creates a right in
the licensor to enter into a land and enjoy it. By reason of a license, no estate or
interest in the property is created.
A license, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the
stranger in his own name; (c) it is revocable and (d) it is determined when the grantor
makes subsequent assignment.
Madhu Behal and Anr. vs. Rishi Kumar and Anr16
It is never a nomenclature in the document that governs the decision as to whether a
document as a lease or a licence.
The essential feature that distinguishes a lease from licence is always a transfer of
interest in the demised property in a transaction of lease while a licensee does not
involve any such transfer of interest.
15 AIR 1999 SC 2607
16 (2009) 3 PLR 628 (Punjab & Haryana High Court, 2009)

 The lease is heritable while license is personal to the grantee.

The legal possession of the property is inevitably transferred to a tenant under lease
while in a transaction of license the legal possession continues with the licensee and
the licensee has a mere right of user of the premises in a particular fashion mentioned
under the document.
DIFFERENCE BETWEEN LICENCE AND EASEMENT
As per Section 4 of the Indian Easements Act, 1882; easement is defined as right which the
owner or the occupier of certain land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and continue to prevent something
being done, in or upon, or in respect of certain other land not his own.
An easement is right or interest in immovable property for the land belonging to another 17.
When once an easement is validly created, it is annexed to land. The benefit of it passes with
the dominant tenement and the burden of it passes with the servient tenement to every person
into whose occupation the dominant and servient tenements respectively come18.
The major points of difference between an easement and a licence are the following:
An easement is a right appertaining to property while a license is only a personal right.
An easement is a right in rem and is enforceable by all and against all into whose hands the
servient and the dominant tenements respectively may come, while a license is only a right in
personam and therefore, not so enforceable.

17 Bhaurao A. Kasar v. Vinod R. Kasar, 2006 (2) Bom. CR 201

18 Swapan Sinha v. Usha Rani Sahana, 2001 (3) Cal. LT (HC) 166

An easement can be assigned with the property to which it is annexed, but a license cannot be
assigned at all except where it is a license to attend a place of public entertainment.
A right of easement is not revocable at the will of the grantor while a license is so revocable,
except where the grantor is stopped by his conduct from exercising the power of revocation
conferred by law.
A license is permissive right traceable to a grant from the licensor either expressly or
impliedly. But an easement is acquired either by assertive enjoyment by the dominant owner
or by a negative covenant between the parties or by grant or by statute.
An easement may be positive or negative in character, a license is invariably positive and
cannot be negative in character. It may be that there are cases in which a negative obligation
might be cast on the licensor with the object of protecting a licence coupled with a grant but
such obligation is due to the grant accompanying the licence and not to the licence per se.

CHAPTER 5
CONCLUSION
Such a statement does not reveal whether it is a transaction or a legal relationship. If the
latter, it may be revocable or irrevocable, and may have, in either case, a variety of other
characteristics. If a transaction, it may be unwritten, or written but unsealed, or couched in
unusual terms, or designed for a special purpose; its legal consequences will vary with these
circumstances.
The conclusion that the term license implies nothing does not mean that there is no law of
licenses. There is license law, but it must be stated in terms of particular types of cases.
Where a licensor gives no reason to expect otherwise, the licensees privileges can be

terminated at will. Where a licensor manifests an intention that the privilege shall be more
enduring, the consequences depend upon other circumstances. If it offends no legal policy,
the license may create a true easement. If it offends the rule requiring a sealed instrument, it
will probably create an easement, but the licensee can obtain relief only through equitable
procedure. If enforcement of the license would encumber the land with relatively useless
burdens, neither the parties expectations nor their formalities nor their expenditures will give
the interest the characteristics of an easement.
This simple rationalization of license cases is largely impeded by the ambiguous usage of
license to signify sometimes a transaction, sometimes a relationship. All the recent writers
agree that one of the usages should be adopted and the other rejected, but disagree on which
to adopt and which to reject.
The usage of license to signify a transaction is widely used by laymen, who rarely think in
terms of jural relations. It is often compared with the terms lease and easement, which usually
signify certain kinds of transactions. So long as the legal vocabulary contains the nouns
licensor and licensee to designate the parties to the transaction, and the verb to license for the
process of transacting, it is fanciful to imagine that lawyers will refrain from describing these
operative facts as a license.
The usage of license to signify a relationship can be more readily eliminated. Usage of the
additional term license suggests distinctions which seldom exist. The recognition of legal
relations as distinguished from operative facts demands terms which suggest the distinction,
just as fee and leasehold suggest something different from lease.

BIBLIOGRAPHY
PRIMARY SOURCES:

STATUES:
Indian Easement Act,1882
The Transfer of property Act,1882
SECONDARY SOURCES:
BOOKS:
1. Darashaw J Vakils, Commentaries on Transfer of Property Act,1882, Volume 2, 4th
Edition (reprint 2015), Lexis Nexis Butterworths publication.
2. Sir Dinshaw Fardunji Mulla, Transfer of Property Act, 1882, 12th Edition, 2015,
Lexis Nexis Butterworths publication.
3. S.N.Shukla, Transfer of Property Act, 29th Edition, 2015, Allahabad Law Agency.