Property is perhaps the most critical, tangled, and comprehensive piece of
current law. Under this field of law, the rights, cases, obligations, and
commitments of the get-togethers related to any property become the subject of
Prior, the License was portrayed as how a landowner conferred his consent to
another using his domain on various events; the License was depicted as the
lawful relationship by which the other could utilize the land without being
answerable for trespass. In current conditions, the License is suggested as an
endorsement by the landowner for the showings of the licensee, which would
somehow or another be submitted unlawfully.
The standard thoughts of exposed or simple licenses, licenses joined with an
interest or grant, licenses circled back to or executed, and rights upon
critical idea were used before. A massive number of these thoughts anticipated
explicit differentials in various transactions' legal consequences of multiple
transactions. It moreover made it not altogether prominent huge license trades,
which these articulations didn't propose.
As per a few researchers, the legal instrument of License in ardent properties
was created to manage the legitimate inconveniences of lease and rental rights
under Indian law. Specifically, this legitimate instrument was designed to
empower property proprietors to limit tenants and remove them all the more
without any problem.
In any case, numerous property proprietors that expected to
secure themselves by entering a leave and license agreement (for example, a
license agreement to utilize an immovable property for a specific reason) end up
confronting court choices deciding that their contract was truth be told a lease
agreement. A portion of the slip-ups made by such property proprietors might
have stayed away from.
The paper aims to analyze the meaning of License under Indian law, how the
License concept has been defined under the Easement Act, and the Major
difference between License and Lease.
- To understand the meaning of License concerning Indian Property Law.
- To ascertain the difference between License and lease.
- To verify the prerequisite for granting a License.
- Whether there is any difference between License and Lease or not under
- What are the different kinds of licenses?
- What are the forms of Licenses?
Doctrinal research has been carried out during this assignment, secondary and
library-based resources, including various online articles, have been utilized,
empirical data has been collected.
Definition of License:
A license is a personal right granted to an individual to accomplish something
upon the unflinching property of the grantor. It doesn't add up to the formation
of interest in the actual property. It is simply a tolerant right and is
personal to the grantee. It makes no obligations and obligations upon the people
making the grant and is, consequently, revocable besides in specific conditions
explicitly accommodated in the actual Act. The license, when granted, has not
another impact to give freedom upon the licensee to go upon the land which would
somehow be lawful.
License is only approval to achieve something on a relentless property like
occupation, liking everyday item thereof, or using it for another explanation.
License is an authorized license or agrees to proceed with some business or do
some demonstration without the license. The words License and license are
regularly used equally.
License Under The Indian Law
In most general terms, a license means an Authorization or permission which is
granted by a licensor (having some right over the immoveable property) to a
licensee; for illustration, if A has a factory that manufactures shoes, he
appoints a person B to open a shop in his factory for providing the finishing to
the boots manufactured by A, in the instant case A has given a license to b
which authorizes him to come into A's premise and use that land in a certain
way. It's important to note here that the possession of the immovable property
remains with the grantor only.
Section 52 of the Indian Easement Act, 1882 defines the term as when a person
grants or authorizes another or group of persons, a right to do or continue to
do in or upon the immovable property something which would be in the absence of
granted license would come under the illegal The licensee can be in a written
document or oral as well. It involves two per, i.e. the licensor (Person
granting the licensees (per the on whom that authorization has been granted).
Thus it can be summarized as a document that gives only a more prosperous to
come on the land or premise of the immovable property and use that in some way
or another. Meanwhile, the possession & Control remain with the owner. This is
a personal right between the licensor and license.
Associated Hotels of India v. R.N. Kapoor: According to Section 52, as expressed
for the situation, where an agreement licenses the option to utilize the land in
a particular way or under specific conditions while it stays in the possession
and control of the proprietor, thereof, it will be a license. Subsequently,
lawful possession remains with the proper proprietor. However, the licensee can
utilize the premises for a specific reason.
Yet, his occupation would be unlawful for the permission. This doesn't set up an
estate or interest in the property to support himself. Subsequently, the
qualification between the two ideas is evident. The isolating line is
straightforward; however, it gets exceptionally flimsy or even obscured now and
again. At one at once, the selective possession was thought of as unfailing. If
an individual were conceded restrictive possession of a reason, he conclusively
demonstrated a resident.
Essential features of the License:
- A license isn't associated with the responsibility for/property yet
makes just an individual right or commitment.
- License makes a right or interest in the unfaltering property to
accomplish something under the authority of the grantor of the License.
- A license can't be moved or allotted to any other person,
- License is simply permissive right emerging exclusively by consent,
express or inferred, and not by adverse exercise or in some other manner.
- It legitimizes a specific act that would otherwise be unlawful and
doesn't give any interest in the actual property in or upon which such
activity is licensed to be finished.
- A licensee can't sue outsiders in his name.
- A license is a positive right granted for doing any personal act on the
immovable grantor. Meanwhile, an easement can be either positive or
negative; for illustration, A can grant a License to B to open an ice-cream
shop on his land, but A can't provide B with a license that would prevent A
from opening a shop on his land.
Kinds Of License
A license can be divided into two following kinds:
- Bare license, which is purely a matter of personal privilege, and
- Licence coupled with a grant or interest in the land.
A bare license is an individual authorization or assent, granted without
thought, to enter, get over or be accessible upon the place known for another. A
revealed license is a license granted unnecessarily which isn't joined with the
grant of an interest in the land, for instance, the License which one
essentially grants to one's guests. Such a license may be denied at whatever
point. An exposed license is a gatekeeper to what in particular precisely would
somehow or another amount to the wrongdoing of trespass.
Where the licensee
surpasses the ambit of the License, his status will subsequently be that of the
intruder. In case the individual is licensed to enter the land for one
explanation yet enters for another reason or while on the ground begins to
pursue a substitute clarification to that which he is approved, again he
transforms into an intruder, where it is known or seen that the occupier would
not have given permission.
License coupled with a grant or interest in the land
A license combined with a grant or interest in land emerges where there is
consent to enter onto one more's territory for the inspiration driving
eliminating something from that land (for instance, lumber). This License
consolidates the grant of interest (for example, a Prendre benefit with
subordinate authorization to enter the land to acknowledge or exploit that
Lease & License: Discussion
A lease of suffering property is a trade of choice to see the value in such
property, made for a particular time frame edge, express or recommended, or in
ceaselessness, concerning an expense-paid or ensured, or of money, a piece of
harvests, administration, or another thing of critical worth, to be conveyed
every so often or on demonstrated events to the transferor by the transferee,
who recognizes the trade-dependent on such conditions. The transferor is known
as the lessor, the transferee is known as the renter, the expense is known as
the premium, and the money, deal, administration, or something else to be
conveyed is the rent.
The prerequisites for a lease are:
|No passing of interest in the property
||Creation of interest in the property
|The license confers no such right to the
||The lease gives the tenant a right to
|License is non-transferable and non-revocable
||The lease is transferable and revocable
- Selective possession of a characterized space of land.
- For a decent period (or series of times).
- It is intended to make an estate in land interest in the actual land
allocated or sold.
A license agrees to use the land. It licenses someone's induction to where there
is one more for an agreed explanation. It is a power that legitimizes what may,
some way or another, be a trespass.
The test to build up that whether a trade is a rent or a license is:
- The social events' assumption is to be collected from the particulars of
the agreement. On the off chance that the words are not good, the including
conditions will choose the objective of the gatherings.
- Without even a hint of a created document and when somebody is, in
particular, belonging, then, utilizing the file, the assumption is to be
aggregated from other verification; for instance, prohibitive belonging
would be the most relevant circumstance to appear at the objective of the
social affairs at the hour of making the rent.
- Assuming a question arises, the objective is to bemuse from generally SCR.
- A rent or License involves a contract between the social occasions. The
agreement must be perceived or interpreted mainly laid standards for
creating legally binding terms.
Difference Between License And Lease
Lease has been defined in Section 105 of the transfer of property act.
Meanwhile, the term license has been described in section 52 of the Indian
Easement Act; the lease is a transfer of the right; one person transfers some
right to another over some immovable property, this transfer of ownership could
be for some specified time or perpetual, expressed or implied, it is also
provided in the act that some premium or rent could be paid for the lease, it is
worth mentioning that ownership doesn't get transferred in lease.
illustration, if A leases his mango garden to B to procure mangoes with a yearly
premium over it. B has some interest in the property; hence this is a leave
case. If B is authorized to pluck mangoes from the garden for some money offered
to B, it doesn't interest the property. This is a license. Only authorization is
given in the case of license. It is worth mentioning that if you overstay with
the approval granted under the license, you become trespassers.
The license can be granted to any individual ormer people simultaneously;
section 52 of the act also implies it doesn't include easement.
Shantabai V State of Bombay
In the instant case, plaintiff Shantabai and
wife of A, who executed an unregistered lease with the considerable amount of
26thousands for twelve and half years, according to lease, mitted her wife to
cut and take out bamboo, fuel woods. Shanatabai was prohibited from cutting the
teak trees until it became; after two years, Madhya Pradesh's abolition of
proprietary rights was implemented in 1950.
All the proprietary rights were
vested with the State. Plaintiff was prohibited from cutting the trees. As a
result, she asked for compensation from the government or permission to cut the
trees. And she cut the t, rees and the Government stopped. Finally, she filed a
petition under Article 32 of the Indian Constitution, contended that trees are
standing timber, come under the definition of moveable property, and her right
The main legal issue in the instant case is whether the trees are Moveable or
Immoveable in nature? Section 3 of the Act defines what doesn't come under
the immovable property. The Hon'ble Court held that plaintiff had no remedy
available. This couldn't term a breach of a fundamental right in the instant
case. It could be a breach of a contractual duty. The petition was dismissed
Forms Of License
Section 54 states that The award of a license might be expressed or inferred
from the lead of the grantor, and an understanding that implies making an
easement, however, is insufficient for that reason, may work to make a license.
A license is notionally made where an individual is allowed the right to utilize
the premises without becoming qualified for the elite possession. The conditions
and lead of the gatherings show that all that was expected was that the grantee
ought to be conceded a unique privilege with no legitimate interest.
A license may be implied from the conduct of the licensor whereby he allows
something to be done on his land by another person who believes the land to be
his own. A plea of the implied license may be based on the right of equity to
intervene, must-have for its foundation either a contract or the existence of
some fact which the legal owner is stopped from denying.
A regular daily existence illustration of implied License is on account of a
businessperson soliciting customers to enter his premises to work together.
For illustration, if two parties have an agreement for an easement and both the
parties act accordingly, later it is found the imposition of that easement on
that land is not possible for any reason, this act can be carried out as a
In direct terms, an express License approves the grant of a specific
demonstration; as a license to keep a bar given by open position. Express
licenses oversee more exact circumstances where the permission has been
expressly coordinated towards a specific person. A model is where the proprietor
welcomes visitors for supper or remains in a room on his property. The License
oversees the predetermined time of the stay, and any reemergence after that
period minus any additional permission would comprise trespass.
There is one exception to this section: this express license concept is subject
to any contract between the two parties; if the contract expressly mentions that
it requires the licensee not to do something while exercising his right, this
section will be invoked.
Granting Of License:
Anyone having the legal right over some immovable property can grant the license
to another person for doing any lawful act over that land. It is worth
mentioning here that to grant a license; you needn't be the owner of that
property; you must have some kind of interest.
With everything taken into account, one can't yield a grant and get a license if
the licensor doesn't have a sufficient lawful interest in the property. The
subsequent inquiry is responded to in section 54 of The Indian Easements Act,
1882, which communicates that honour of license may be communicated or suggested
from the head of the grantor, and a course of action which means to make an
easement, yet is insufficient thus, may attempt to make a license. In general, a
license is a personal right only, while some exceptions are provided where the
transfer can be transferred to any other person.
Exceptions where License can be transferred, Cinema, amusement park, fairs, etc.
The license to enter those places in the form of tickets is generally
transferrable unless the terms expressly forbid it. Meanwhile, the railway
doesn't fall under this category.
Duty Of Grantor
- A grantor must disclose any defect in the concerned property that has
been licensed, which is considered dangerous.
- The grantor should not do anything that would render the property under
the license hazardous to the person and the property of the licensee;
illustration, A granted a license to B to open a shop in his building and then
started some construction work outside the premise, that is going to disturb the
foundation of the building and may result in the collapse of the building if it
collapses, B would be entitled to get damages from the grantor. Even B can
approach the court for an injunction of such construction, which would result in
the collapse of the building.
It can be concluded from the abovementioned study that a significant difference
between a License and a lease is that a license doesn't confer any interest in
the property for which license is granted to the licensee from the licensor. A
licensor gives nothing but wrong reason to expect regardless; the licensee's
advantages can be twisted openly.
A licensor shows that the right will be
driving forward; the outcomes depend on various conditions. If it irritates no
proper procedure, the License may make an original easement. It will ease if it
upsets the standard requiring a decent instrument, yet the licensee can reduce
right through the reasonable strategy. The paper also discussed the duties
imposed on the grantor of a license under the act, and if the responsibilities
aren't fulfilled, what are various remedies available.
This straightforward justification of license cases is to a great extent
obstructed by the uncertain use of License to imply here and there a
transaction, some of the time a relationship. Every one of the new journalists
concurs that one of the uses ought to be embraced, and the other dismissed, yet
differ on which to take on and ignore the use of License to mean a transaction
is broadly utilized laypeople infrequently think in terms of jural relations. It
is often contrasted with lease and easement, which typically connote particular
- Dr Avtar Singh, Textbook on The Transfer of Property Act, Sixth
- Manupatra - An Online Database for Legal Research (manupatrafast.com)
- Legal Services India - Laws in India, Supreme court judgments, lawyers
- iPleaders Blog | India's Biggest Legal Blog
- Parsons v. People, (1904) 32 Colo. 221
- 1958 AIR 532, 1959 SCR 265.
- The transfer of Property Act, 1882, Section 3.
- The Indian Easement Act, 1882, Section 57