Jyotirmay Bhattacharya, J.
1. This Second Appeal is directed against the judgment and decree dated 23rd September, 2003 passed by the learned Additional District Judge, 6th Court at Alipore in Title Appeal No. 402 of 2001 heard analogously with Title Appeal No. 3 of 2002 affirming the judgment and decree passed by the learned Civil Judge (Senior Division), 1st Court at Alipore in Title Suit No. 30 of 1990 heard analogously with Title Suit No. 68 of 1991. Two suits were filed by the parties against each other.
2. Title Suit No. 30 of 1990 was filed by Smt. Provabati Das the respondent No. 1 herein inter alia praying for a decree for eviction of her licensee namely Mrs. Usha Rohatgi since deceased, on termination of her licence. Since the said licensee was claiming her tenancy right in respect of the suit property, an alternative relief for eviction of the said defendant was prayed for, upon service of notice under Section 13(6) of the West Bengal Premises Tenancy Act on various grounds including default in payment of rent, reasonable requirement etc.
3. The said Mrs. Usha Rohatgi along with her husband Dr. Vikramjit Singh Rohatgi filed a suit being Title Suit No. 68 of 1991 against Smt. Provabati Das and the CESC authority. In the said suit the plaintiffs therein prayed for declaration that the plaintiff No. 1 is the tenant in respect of the suit property under Provabati Das. Permanent injunction was sought for against Provabati Das and her men and agent for restraining them from causing any disturbance to Smt. Rohatgi and the members of her family in their enjoyment of the suit property. A decree for permanent injunction was also sought for against the CESC authority for restraining them from deleting the name of the plaintiff No. 2 namely Dr. Rohatgi as registered consumer from their records. Several other incidental reliefs by way of permanent injunction and mandatory injunction were prayed for by the said plaintiff against Mrs. Provabati Das in the said suit.
4. Both the suits were contested by the respective defendants by filing their written statement therein.
5. In short, Smt. Provabati Das claimed that Smt. Rohatgi is her licensee, but since the said licensee refused to vacate the suit premises even after revocation of licence, an eviction suit was filed against her. On the contrary Smt. Rohatgi claimed in her pleadings that she is a premises tenant in respect of the suit property under Smt. Provabati Das and her tenancy is governed by the provisions of the West Bengal Premises Tenancy Act, 1956. Smt. Rohatgi also contested the alternative claim of Smt. Provabati Das by denying the grounds of eviction on which Smt. Rohatgi was sought to be evicted.
6. Admittedly, an agreement of licence was executed between Provabati Das (licensor) and Smt. Rohatgi (licensee) on 2nd June, 1979. Terms and conditions on which Smt. Rohatgi was allowed to occupy the suit premises were incorporated in the said agreement. Though the execution of the said deed is not disputed by any of the parties, but a dispute has cropped up between the parties relating to interpretation of the said document and/or concerning the real intention of the parties behind execution of such a document. In other words the Court was invited to ascertain from the terms of the said agreement as well as from the evidence adduced by the parties in the suit as to whether Smt. Rohatgi was inducted as a licensee or as a tenant in the suit premises.
7. Both the Courts below, in fact, declared that Smt. Rohatgi was a licensee under Smt. Provabati Das and thus the decree for eviction which was passed by the learned Trial Judge against Smt. Rohatgi was also affirmed in appeal by the learned 1st Appellate Court. Consequently the relief claimed by Smt. Rohatgi and her husband in their suit was refused by the learned Trial Judge and the said judgment and decree was also affirmed in appeal by the learned 1st Appellate Court. Both the Courts below came to the aforesaid conclusion primarily on the basis of the admission made by Smt. Rohatgi and her husband in their pleadings as well as in their evidence in the suit. Considering the pleadings of the parties and the evidence on record as well as the agreement for licence, both the Courts below held that intention of the parties behind execution of the said deed was to create a licence in favour of Smt. Rohatgi.
8. Being aggrieved by and dissatisfied with the judgment and decree of the learned 1st Appellate Court, both these second appeals were filed before this Court. Dr. Rohatgi and the other heir of Smt. Rohatgi are the appellants in both these appeals, before this Court.
9. Mr. Bhattacharya, learned Advocate appearing for the appellants challenged the propriety of the judgment and decree of the learned Court below by contending inter alia that the real tests which were laid down by the Hon'ble Supreme Court as well as by this Hon'ble Court, for ascertaining the real intention of the parties behind execution of such agreement have not been applied by the learned Courts below in the instant case. According to Mr. Bhattacharya whether a document is a lease or a licence, can be ascertained by looking at the substance of the agreement but not at its form inasmuch as clever drafting of an agreement by using suitable terms by the dominating party may create camouflage on the real intention of the parties. Mr. Bhattacharya relied upon the following decisions of the Hon'ble Supreme Court as well as of our High Court to support his aforesaid submission:
1. Associated Hotels of India Ltd. v. R.N. Kapoor reported in : [1960]1SCR368 .
2. Captain B.V. D'souza v. Antonio Fausto Fernandes reported in : [1989]3SCR626 .
3. C.N. Benna and Anr. v. P.N. Ramchandra Rao reported in : AIR2004SC2103 .
4. Delta International Ltd. v. Shyam Sunder Ganeriwalla reported in : [1999]2SCR541 .
5. Ayan Chattejee and Ors. v. Future Technology Foundation Ink and Ors. reported in : AIR2005Cal295 .
10. The following propositions were established in the aforesaid decisions:
(i) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.
(ii) The real test is the intention of the parties - whether they intended to create a lease or a licence.
(iii) If the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the legal possession continues with the owner, it is a licence.
(iv) If under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be tenant; but circumstances may be established which negative the intention to create a lease.
11. Mr. Bhattacharya, thus, submitted that both the Courts below while deciding the suits and/or the appeal erred in law by not applying the aforesaid tests in the facts of the instant case.
12. Mr. Bhattacharya contended that the parties to the agreement are not even remotely related to each other. They are absolutely stranger to each other. When such parties entered into agreement, according to Mr. Bhattacharya, normally such agreement creates a tenancy and not a licence. Referring to various terms of the said agreement, Mr. Bhattacharya tried to impress upon this Court that, in fact, a tenancy was created in favour of Smt. Rohatgi by Smt. Provabati Das. Mr. Bhattacharya firstly pointed out that while describing the parties in the said agreement Smt. Provabati Das was described as licensor with a rider that the said expression, unless excluded by or repugnant to the subject or context shall mean and include her successors, assigns and legal representatives. Similarly, while describing Smt. Usha Rohatgi as licensee therein, it was mentioned that the said expression licensee, unless excluded by or repugnant to the subject or context, shall mean and include her successors and legal representatives. Relying upon a Division Bench decision of our High Court in the case of Ayan Chatterjee and Ors. v. Future Technology Foundation Ink (supra) Mr. Bhattacharya submitted that general rule relating to licence is that a licence comes to an end on the death of the licensor or on transfer of the property by the licensor and such licence is not binding upon his heir and/or assigns. Thus, when the parties have consciously executed the said agreement to bind their heirs and legal representatives and/or assigns, according to Mr. Bhattacharya, the real intention of the party was not to create a licence but to create an interest in the property involved. Mr. Bhattacharya, thus, submitted that the moment it is established that the parties did not want to bring an end to the licence on the death of any of the parties to the agreement and/or on transfer of the interest of the licensor, the inevitable conclusion that emerges out is that the agreement was really an agreement for tenancy. By referring to Clause 4 of the said agreement Mr. Bhattacharya submitted that since an option was given to either of the parties to terminate the said agreement at any time by giving one month's notice after expiry of five years from the date of execution of the said agreement, a lease was, in fact, created in favour of Smt. Rohatgi as the said term has much semblance with the statutory provision contained in the Tenancy Laws. By referring to Clause 6 of the said agreement Mr. Bhattacharya submits that when the licensee was given the right to keep and maintain the said flat and the fittings and fixtures therein in a state of good repair and working order by causing minor maintenance and repair therein, a tenancy was, in fact, created in favour of Smt. Rohatgi. That apart, besides giving the said authority to repair the suit flat, a restriction on addition or alternation in the suit premises without prior consent of the licensor was imposed upon Smt. Rohatgi in the said Clause. According to Mr. Bhattacharya the said restriction has also much semblance with the restriction of similar nature provided under the tenancy laws. Lastly Mr. Bhattacharya referred to Clause 8 of the said agreement to show that Smt. Provabati Das had no free access in the suit premises. It was recorded in the said clause that when the licensor or her authorized representatives want to inspect the suit premises, the licensor is required to seek permission from the licensee by giving 48 hours notice. Mr. Bhattacharya, thus, submitted that this Clause proves that the exclusive possession of the suit flat was given to Smt. Rohatgi and since parting with exclusive possession is the most vital test leading to the conclusion that a tenancy was created the learned Courts below sought to have held that tenancy was, in fact, created in favour of Smt. Rohatgi.
13. Mr. Bhattacharya ultimately submitted that the Hon'ble Supreme Court almost in a case of similar nature in the case of Captain B.V. D'souza v. Antonio Fausto Fernandes (supra) held that, in fact, a tenancy was created in favour of the appellant therein though induction was made on the basis of an agreement for licence by using the nomenclature and/or expression therein which fit in suitably in case of licence.
14. In the aforesaid circumstances, Mr. Bhattacharya invited this Court to interfere with the judgments and decree impugned in this appeal.
15. On the contrary, Mr. Mukherjee, the learned Senior Counsel appearing on behalf of the respondent No. 1 in both the appeals strongly supported the judgments and decrees of the learned Courts below. Mr. Mukherjee contended that there is no dispute with regard to the proposition of law to the effect that the intention of the parties behind execution of a document is to be ascertained by applying the established tests which were laid down by the Hon'ble Supreme Court in the decisions cited by Mr. Bhattacharya. Mr. Mukherjee submitted that the intention of the parties to an instrument must be gathered from the terms of the agreement itself and while ascertaining such intention of the parties, the Court must look into the substance of the agreement and not the form. According to Mr. Mukherjee when intention of the parties can be gathered from the document itself, surrounding circumstances need not be considered. Mr. Mukherjee, thus, contended that surrounding circumstances can be considered only when intention of the parties cannot be gathered from the agreement itself.
16. By referring to the decisions of the Hon'ble Supreme Court cited by Mr. Bhattacharya Mr. Mukherjee submitted that, in fact, in all the aforesaid decisions the Hon'ble Supreme Court held that neither the description of the parties nor the recital in the deeds nor the test of exclusive possession are decisive factors though are of some significance.
17. Mr. Mukherjee further contended that it is a case of unique nature where the appellants themselves in their pleadings as well as in their evidence admitted that a licence was created in favour of Mrs. Rohatgi by Mrs. Provabati Das on the basis of the mutually settled terms which were incorporated in the agreement of licence which again was admittedly executed by the parties. By referring to paragraph 1 of the plaint filed by the appellants, Mr. Mukherjee pointed out the admissions made by them in their pleadings regarding creation of licence in favour of Mrs. Rohatgi. According to Mr. Mukherjee as per Section 18 of Evidence Act, 1872 an admission by a party is substantive evidence of the fact admitted. An admission duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admission or not. According to Mr. Mukherjee admissions, if true and clear, are by far the best proof of the facts admitted and they by themselves can be made the foundation of the rights of the parties. In support of such submission Mr. Mukherjee relied upon the following decisions of the Hon'ble Supreme Court:
(i) Nagindas Ramdas v. Dalpatram Iccharam reported in : [1974]2SCR544 .
(ii) Union of India v. Moksh Builders and Financers reported in : [1977]1SCR967 .
18. By referring to the evidence of Dr. Rohatgi D.W.1 Mr. Mukherjee pointed out that Dr. Rohatgi stated in his evidence that Mrs. Rohatgi put her signature on the said agreement under his instruction. Mr. Mukherjee further pointed out to the other part of his evidence in cross-examination wherein Dr. Rohatgi stated clearly that 'it is true that my wife came to the suit premises as licensee and her licence was revoked'. Referring to those pleadings and the part of the appellants' said evidence, Mr. Mukherjee submitted that when the terms of induction were mutually settled between the parties and when the parties executed the said agreement after clearly understanding the nature of the document they executed and when the parties have followed and/or implemented the terms of the said agreement without any protest, the appellants cannot claim that though Mrs. Rohatgi was described as a licensee therein but, in fact, she was a tenant thereof.
19. By referring to the receipt granted by the licensor on realization of license fees being Exhibit 'D' which was admitted into evidence on admission as well as the subsequent receipts granted by Mrs. Provabati Das showing realization of licence fees from the licensee, Mr. Mukherjee submitted that those are all evidences in support of her client's claim for creation of licence, inasmuch as in those receipts Mrs. Rohatgi was described as licensee and the amount which was realized by Mrs. Provabati Das as licensor against those receipts, were all described as licence fees.
20. Mr. Mukherjee also referred to various other pleadings of the said Dr. Rohatgi filed in connection with the criminal proceedings under Section 144(2) of the Criminal Procedure Code being Exhibit '3' and the writ petition filed by them before the Hon'ble High Court being Exhibit '4' wherein the appellants themselves described Mrs. Rohatgi as licensee in respect of the suit premises under Mrs. Provabati Das.
21. Referring to those evidences Mr. Mukherjee submits that when both the learned Courts below by considering all the admissions made by the appellants in their pleadings as well as in their evidence concurrently held that Mrs. Rohatgi was a licensee under Mrs. Provabati Das and such licence was created on the basis of said agreement of licence, this Court sitting in this jurisdiction should not disturb such findings of fact arrived at by both the Courts below on the basis of the materials on record.
22. Ultimately Mr. Mukherjee referred to the agreement itself to show that creation of tenancy cannot be inferred as the terms of the agreement clearly show that no interest in the suit property was transferred in favour of Mrs. Rohatgi by the said agreement; on the contrary, a mere right of user of the suit flat for a particular purpose of her residence for a limited period was granted in favour of Mrs. Rohatgi by retaining absolute control and possession of the suit flat with Mrs. Provabati Das.
23. By referring to the preamble of the said agreement Mr. Mukherjee pointed out that the said Leave and Licence Agreement was executed on the request of the licensee. Clause 1 of the said agreement provides that the licensee is required to pay a sum of Rs. 700/- towards the licence fees and a sum of Rs. 300/- towards service charges. It was further mentioned in the said Clause that the said flat will always be in the absolute control and possession of the licensor but the right of use and enjoyment thereof during the continuation of the agreement was given to the licensee. Clause 2(A) of the said agreement provides that the licensee shall use and enjoy the said flat for the purpose of her residence only and shall not allow any third person to reside therein without the permission of the licensor. Clause 5 of the said agreement provides that this agreement shall be final and conclusive as to the right of use and enjoyment of the said flat by the licensee. Clause 3 of the said agreement provides that in case of non-observance of any term, condition and/or stipulation contained in the agreement by the licensee (in this case the opinion of the licensor shall be final and binding) this agreement shall be deemed to have come to an end the and licensee shall forthwith deliver peaceful and vacant possession to the licensor. Referring to those terms of the said agreement, Mr. Mukherjee submitted that where the document is unambiguous there is no need to travel beyond the document and the Court in such circumstances, is only required to look at the attendant circumstances together with the intention of parties for ascertaining the nature of relationship created between the parties on the basis of the said agreement. In support of such submission Mr. Mukherjee relied upon a decision of the Hon'ble Supreme Court in the case of Swarn Singh v. Madan Singh reported in 1995 Supp (1) SCC 306.
24. Mr. Mukherjee also submitted that both Mr. & Mrs. Rohatgi were admittedly very much conversant with English language. Admittedly they came into possession in the suit premises in May, 1979. The agreement was entered into in 2nd June, 1979. Thus, when the agreement was prepared as per the mutually agreed terms of the parties and when the parties executed the same knowing the respective rights of the parties under the said agreement and when the said agreement was executed about a month after the appellants came into possession of the suit premises, it cannot be said that the appellants were either compelled to sign the said agreement or they executed the said agreement under duress or without understanding the real purports of the said agreement.
25. Mr. Mukherjee lastly submitted that though it is true that normally licence comes to an end on the death of the licensor and/or the licensee and/or on transfer of the property by the licensor but continuation of the licence even after the death of the licensor and/or the licensee, if agreed upon by the parties, is not absolutely impermissible and/or impossible in law. Mr. Mukhejee, thus, submitted that even after the death of the licensor and/or the licensee, permissive possession can be continued unless the heirs and/or successor of the licensee sets up title in themselves by adverse possession with the knowledge of the licensor. In support of such submission Mr. Mukherjee relied upon the following decisions of different High Courts:
(i) In the case of Nand Gopal v. Brij Mohan Lal reported in 1966 Allahabad Law Journal page 166.
(ii) Basanti v. Bijayakrushna reported in : AIR1976Ori218 .
(iii) In the case of Beni Madhavprasad v. Rasklal reported in : AIR1959MP23 .
26. Thus, Mr. Mukherjee supported the judgment and decree of both the Courts below and invited this Court not to interfere with the impugned judgment.
27. Let me now consider the respective submissions of the parties in the facts of the instant case. It is no doubt true that for ascertaining a document as to whether it is a lease or a licence, the Court is required to consider the substance of the agreement that matters and not the form. It is rightly pointed out by Mr. Bhattacharya that the four tests which were referred by him, are required to be applied by the Court to find out as to whether the agreement created a licence or a lease.
28. But when the document itself is unambiguous the Court is not required to travel beyond the document. Thus, when the document is unambiguous the Court has to look at the attendant circumstances together with the intention of the parties to ascertain the real intention of the parties behind execution of such agreement. This principle was laid down by the Hon'ble Supreme Court in the case of Swarn Singh v. Madan Singh (supra).
29. Keeping in mind the aforesaid principle laid down by the Hon'ble Supreme Court, let me now consider the document itself to find out as to whether the terms contained therein are ambiguous or not or in other words as to whether any camouflage was created on the real intention of the parties by clever drafting of the said agreement.
30. Admittedly, Mrs. Rohatgi came into possession of the suit premises in May, 1979. A month thereafter the agreement of licence was executed by the parties on the request made by the licensee. It is also an admitted fact that the terms of the agreement was mutually settled between the parties. All the parties are well conversant with English language. The parties executed the said document without any compulsion and/or pressure from the licensor. The said agreement was not executed by the licensee under duress. Thus, this Court can conclude that the said agreement was executed by the parties freely after understanding the true meaning and purports thereof.
31. Terms of the said agreement as mentioned above unequivocally prove that the licensee was required to pay the licence fees and other service charges to the licensor during the continuation of the licence for using the suit premises only for a particular and specified purpose of her residence without allowing any third party to reside therein without the consent of the licensor. It was also categorically mentioned in the said agreement that the possession and control of the suit premises will always be with the licensor. It was further mentioned therein that in case of non-observance of any of the Clauses, the licence will be terminable as per the decision of the licensor and the decision of the licensor will be final and conclusive in this regard. The said agreement also provides that the licensee is required to keep the suit premises in good and workable condition by effecting repair but under no circumstances the licensee will be permitted to alter and/or add anything to the said flat without prior written consent of the licensor. All these provisions in the said agreement prove unequivocally that a licence was created in favour of the licensee by the said agreement.
32. There is no ambiguity in the said agreement. Parties clearly understood the meaning of the terms and contents thereof. The parties had acted upon the said agreement. The licensee never protested against grant of the receipts showing payment of licence fees to the licensor in terms of the said agreement.
33. Even thereafter, when trouble started between the parties, the licensee in various other proceedings initiated by them either under Section 144(2) of the Cr.P.C. or under Article 226 of the Constitution of India admitted that Mrs. Rohatgi was inducted as a licensee in the suit premises by the licensor but they claimed that after the termination of the said licence Dr. Rohatgi became tenant in the suit premises. The licensee could not prove that any new relationship of tenancy was created between Mr. Mukherjee's client and Dr. Rohatgi after termination of licence following delivery of possession thereof by the licensee to the licensor. No independent evidence showing creation of tenancy in favour of Dr. Rohatgi could be produced. Deposit of rent by Dr. Rohatgi with the rent controller by describing himself as tenant under Mrs. Provabati Das in respect of the suit property cannot be regarded as an evidence of creation of tenancy in favour of Dr. Rohatgi.
34. The aforesaid attendant circumstances coupled with the admission made by the appellants in their pleading in these suits as well as in their various other pleadings either in the criminal proceeding or in the writ proceedings clearly show that the parties really intended to create a licence by execution of the said agreement. In fact, admission whether it is made in pleadings or in evidence is the best evidence which cannot be ignored by the Court in view of the decision of the Hon'ble Supreme Court in the case of Nagindas Ramdas v. Dalpatram Iccharam (supra) and also in the case of Union of Indeia v. Moksh Builders & Financers (supra).
35. Unlike in the case of Captain B.V. D'souza v. Antonio Fausto Fernandes (supra), the agreement in the instant case does not contain any Clause restricting the licensee's right to sub-let and/or under-let and/or part with possession of the premises to any stranger. The instant agreement also does not contain any renewal Clause unlike the agreement which was under consideration before the Hon'ble Supreme Court in the case of Captain B.V. D'souza v. Antonio Fausto Fernandes (supra). As such the principle which was laid down therein has no application in the facts of the instant case.
36. It is rightly pointed out by Mr. Mukherjee that continuation of the licence even after the death of the licensor and/or the licensee is practically not totally impermissible. It is rightly pointed out by Mr. Mukherjee that continuation of the licence after the death of the licensor and/or licensee depends upon the intention of the parties either explicitly or impliedly. Though the normal rule is that the licence will be terminated on the death of the licensor and/or the licensee but departure can be made from such normal rule by agreement of the parties. In this regard the decision of the Allahabad High Court, Orissa High Court and the Madhya Pradesh High Court which were referred to by Mr. Mukherjee can be relied upon. In Nand Gopal v. Brij Mohan Lal (supra) it was held by Allahabad High Court that; 'if the licensee and other members of his family reside in the house without any objection from the licensor who knew fully well who the persons living in the house were, it can very well be inferred that the licence was that the original licensee (in the present case Lala Kabbomal) and all the members of his family should live in the house. Accordingly, the possession of the sons and other members of the licensee's family being permissive in nature, there position will be no better than that of licensee. Although the express licence was in the name of one person only, the implied licence must be deemed to be in favour of other members of the family also'.
37. The Orissa High Court in the case of Basanti v. Vijayakrushna (supra) held that when the daughter was allowed to live in the suit house after the death of her father, original licensee, the possession of the daughter was permissive.
38. In fact, the Madhaya Pradesh High Court also held that the licence, is no doubt not annexed to the property in respect of which it is enjoyed nor is it a transferable or heritable right, but is a right purely personal between the grantor and the licensee, unless a different intention appears. When the owner of a house allows somebody to use the same for his residence and for the residence of his family also, the licence cannot be said to have terminated after the death of the licensee. It was held therein that it enured to the benefit of the members of somebody's family and his heirs after his death, and their possession of the house after somebody's death, until they deny the owner's title, must be held to be permissive and not adverse.
39. In the above circumstances, this Court cannot hold that a tenancy was created in favour of Mrs. Rohatgi by the said document merely because of continuation of the said licence even after the death of the licensor and/or the licensee. The decision of the Division Bench of our High Court which was relied upon by Mr. Bhattacharya does not lay down any law declaring that continuation of licence after the death of the licensor or the licensee or after transfer of licensor's interest in the property, is absolutely prohibited under law. What was decided therein that normally licence is not continued after the death of the licensor or the licensee, and if the parties really intend to continue such licence, the inevitable conclusion that emerges is that the agreement was really an agreement of tenancy. But here such conclusion cannot be drawn as continuation of licence even after the death of licensor or licensee was agreed upon by the parties by way of clarification of the terms of licensor and licensee given in the first part of the document, while describing the names of the parties to the agreement.
40. 48 hours notice for inspection of the suit premises was provided in the said deed only to maintain privacy of the family of the licensee and nothing else.
41. Thus, this Court does not find any justification to interfere with the concurrent findings of fact which have been arrived at by both the Courts below on the materials on record.
42. This Court does not find any merit in the instant appeal and the instant appeal stands dismissed on contest.
43. The judgments and decrees of the learned Court below are hereby affirmed.
44. Let the Lower Court records be sent back to the Court below immediately.
45. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.