settled between the parties does not create an interest in immovable property. Such a contract is described as a contract for saleP. R., 65 of 1898. The Court remarked, "that, although the T. P. Act, 1882, is not in force in the Punjab, but the principles it embodies are founded on equity and justice, and are of universal application throughout British India."-P. R., 6 of 1901. Lastly, in Lakhmi Narain v. Tara Singh, the Court followed the rule contained in s. 53 of the T. P. Act, 1882, which enacts "that every transfer of immovable property, made with intent to defraud prior or subsequent transferees thereof for consideration, or co-owners or other persons having an interest in such property, or to defeat or delay the creditors of the transferor, is voidable at the option of any person so defrauded, defeated or delayed."-P. L. R., 1900, p. 513, Case No. 574 of 1899. Saving of local usages.-Section 1 of Act IX of 1872 saves from the operation of the Act any usage or custom of trade and incidents of any contract not inconsistent with the provisions of the Act. Section 7, Act IV of 1872, Punjab Laws Act, enacts as follows: All local customs and mercantile usages shall be regarded as valid, unless they are contrary to justice, equity and good conscience, or have, before the passing of this Act, been declared to be void by any competent authority. Common Law of England held applicable to India-Rules applicable to relation of landlord and tenant. The rules applicable to the relation of landlord and tenant in England are applicable whenever no precise rule regarding the subject is to be found in Hindu or other Laws.-Tara Chand Biswar v. Ram Chandra Chowdhry, 4 Cal., 781. 4 CHAPTER II. Definition, creation and requisites of a lease. Lease, defined.-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 transferer by the transferee, who accepts the transfer on such terms. The transferrer 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 rendered is called the rent-T. P. Act, IV of 1882, s. 105. These definitions may be accepted as of universal application. A lease should be distinguished from a license -"When one person grants to another, or to a definite number of other persons, a right to License, defined. 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 license."-S. 52, Act V of 1882. When the grantor of the license transfers the property affected thereby, the transferee as such is not bound by the license.-S. 59, Act V of 1882. License when revocable. A license may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force: (b) the licensee acting on the license has executed a work of a permanent character and incurred expenses in the execution.-S. 60, Act V of 1882. Distinction between a lease and license to use -A lease for years is a contract for the exclusive possession of lands and tenements for a certain number of years, or other determinate period (a). An instrument is not a demise or lease, although it contains the usual words of demise, if its contents show that such was not the intention of the parties. Thus, where A. agrees with B. to let him have the use of a Music Hall for four days, at £100 per day, for giving a series of four grand concerts and night fêtes, but from the terms it was evident that A. was not to part with the possession of the premises during these four days, this was held no demise (b). So where A., an owner of a lace-machine, paid 12s. a week to B. for permission to place the machine in a room in B.'s factory, and for free egress and ingress to the room for himself and workmen for the purpose of working and inspecting the machines, and B. supplied the necessary steam power for working the machines, payment for which was included in the above sum, it was held that there was no demise to A. of any part of the room, and no relation of landlord and tenant created between him and B. (c).. Where an incorporated company by deed granted to the plaintiff the sole and exclusive right of putting or using pleasure boats for hire on their canal, it was held that the grant did not create such an interest or estate in the plaintiff as to enable him to maintain an action in his own name against a person who disturbed his right of putting and using pleasure boats for hire on the canal (d). A license to fasten a coal barge to moorings fixed in a river, until determined by a month's notice-the licensee to pay £30 eventually towards the expenses of the moorings-does (a) Reg. v. Morrësh, 32 L. J. M. C., 245. (b) Taylor v. Caldwell, 3 B. & S., 826. (c) Hancock v. Austin, 14 C. B. N. S., 634; 32 L. J. C. P., 252. (d) Hill v. Tupper, 2 H. & C., 121; 32 L. J. Ex., 217. not amount to a demise, nor give the licensee an exclusive right to the use of the moorings, nor render him liable to be rated as the occupier of the part of the bed of the river (a). The grant by a riparian proprietor of a right to take water from a natural stream on which his land abuts, operates as a license in gross, and not as a demise, and will not enable the grantee to maintain an action in his own name against a wrong-doer (b). The gratuitous loan of a shed for a particular purpose operates as a mere license revocable at any time (c), A license to get all the copper as stone, which may be found in part of a manor, for 21 years, at the yearly rental of £25, is not a demise, and will not support a distress for the rent (d). A demise of a fire-brick manufactory for 21 years, with powers during such term to dig fire-clay from under certain adjoining land, does not amount to lease but only to a license as to fire-clay, and will not prevent the licensor from digging parts of such fire-clay, or authorizing others to do so, or otherwise dealing with such adjoining land in a manner not inconsistent with the license (e). -Woodfall, 12th Ed., pp. 115-16. Exclusive possession.-In deciding whether a transaction amounts to a letting or only to a license, the question to be considered is, whether, looking to the substance and context of the agreement, the owner intended to part with possession of the land and control over the property, or whether the agreement is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and under the control of the owner.-Wells v. Kingston upon Hull, 1875, L. R., 10 C. P., at p. 408. (a) Watkins v. Overseers of Milton next Gravesend, L. R., 3 Q. B., 350. (b) Stockport Water Works Co. v. Potter, 3 H. & C., 300. (c) Williams v. Jones, 3 H. & C., 256 ; 32 L. J. Ex., 297. (d) Ward v. Day, 4 B. & S., 337. (e) Carr v. Benson, L. R., 3 Ch. Ap., 524. The Court will not look so much to the words as to the substance of the agreement (a), and, although there be no express words giving a right to exclusive occupation, yet, if the nature of the acts to be done by the grantee requires such a right (b), the agreement will be held to amount to a letting. Considerable weight was attached in the case to the fact that the agreement provided that the land was to be "entered upon" and "delivered up" by the grantee.Fawcett, 2nd Ed., p. 84, 1900. Notice not necessary to evict a licensee. License revocable at will.-The plaintiffs, who were mirasdars of a village, permitted the defendants to occupy their land on the condition that they should do blacksmith's work for the plaintiffs. The defendants ceased to do the work after a time: Held, that the plaintiffs were entitled to evict without notice to quit-Athapute v. Govenda, 16 Mad., 1897. The defendant worked as licensee in plaintiffs' shop along with him for 17 years as a carpenter. On defendant's obstructing the plaintiffs from working in their own shop, the plaintiffs revoked the license : Held, that the license was revocable at pleasure, and the case was distinguishable from the case of grant of a site to village artizans for residence-Harbhagat v. Sheo Lal, P. R., No. 144 of 1890. License amounting to License coupled with creation of an interest. -In a suit to establish a right of easement, irrevocable. water and for damages for interruption of the same, the facts were: Plaintiffs and defendants by agreement between them constructed a dam across a river, and from thence a smaller channel was made through (a) Smith v. St. Michael Cambridge, 1860 3 E. & E., p. 390. |