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property_law:easement:license

License under the Indian Easements Act

Section 52: “License” defined.

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 license.

License, a mere permission

License is merely a permission given by one man (licensor) to another man (licensee), which renders lawful some act of the licensee which would, but for the license, be unlawful. Thus, if A gives to B a verbal permission to walk across A’s land, this is merely a license which renders B's action, which, but for the license, would have been trespass, a perfectly lawful act.1)

Under S.52 of the Indian Easements Act, 1882, license can be oral and it need not be followed by any written document granting license.2)

A right to do or continue to do

In the definition of an “easement” given in S. 4 the words used are ” a right to do and continue to do something,” which shows that a license may be for doing a single act or a series of similar acts but an easement is always a right to put the land to uses of a definite class, and not merely to uses determined specifically or individually: For instance, A, may give permission to B to walk across his land only once but such a right can never be an easement. Again an easement may be a right to prevent and continue to prevent something being done, etc., but a license is never of a negative character.

An interest in the property

A license is a mere personal right and does not create any right in the property itself, as in the case of a mortgage or a lease the mortgage or the lessee acquires an interest in the property mortgagee or leased.

License is a personal privilege and not an interest in the property and therefore, cannot be made subject matter of a Will.3)

Difference between an easement and a license

The following comparative table shows the points of difference between an easement and a license:

License Easement
A license is a personal right4) to do upon the immovable property of the grantor something which would otherwise be unlawful.5) An easement is attached to land and is exercisable by all and against all into whose hands the dominant and servient heritages respectively come.6)
Except under certain circumstances a license is revocable at the pleasure of the grantor.7) An easement is not revocable except when the power to revoke is reserved.8)
It is not enforceable against the transferee of the grantor9) and cannot, in general be transferred by the licensee or exercised by his servants or agents.10) An easement is enforceable against the transferee of the grantor; when the dominant heritage is transferred the easement attached to it passes to the transferee11) and is exercisable by the servants or agents of the dominant owner.12)
A license is always positive i.e., a right to do or continue to do.13) An easement is either positive or negative i.e., (a right to do and continue to do or to prevent and continue to prevent, etc.14)
A license is generally temporary An easement is generally permanent.
A license may be for doing a single act or a series of similar acts.15) An easement is a right to put the land to uses of a definite class.

F. Peacock in his learned treatise on Easements has pointed out the difference in these words : “ A license passes no interest, and neither alters nor transfers property in anything, but is a mere personal right to do on the land of the grantor something which, without such license, would be unlawful ; whereas an easement is attached to land, and so long as it continues, the benefit and burden of it continue also, and are enforceable by all and against all into whose hands the dominant and servient heritages respectively come.”

License is purely a personal right while an easement is a right appertaining to land and license is only a right to do something and not a right to prevent something being done on the property of the grantor as is the case with the easement. For a license it is not necessary that its holder must be the owner or occupier of certain land and that he should hold the right for the beneficial enjoyment of such land.16)

In Mathai v. Jordi Poulose @ Jordi and Others the Hon'ble Kerala High Court summed up the difference between an easement and a license as follows:

  1. An easement is a right appertaining to property while a license is only a personal right.
  2. 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.
  3. 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.
  4. A right of easement is not revocable at the will of the grantor while a license is so revocable, except where the grantor is estopped by his conduct from exercising the power of revocation conferred by law. Where a deed of partition between two brothers recited that the brother without a well should be allowed the use of a well fallen to the share of the other brother, out of brotherly affection and not as of right, it was held that as the license was granted as part of a partition, it was a license coupled with transfer of property falling under clause (a) of S.60 and, therefore, irrevocable.
  5. 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.
  6. 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 license coupled with a grant but such obligation is due to the grant accompanying the license and not to the license per se.17)

Difference between an lease and a license

Section 105 of the Transfer of Property Act defines lease. 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.

George Chandi and Others v. Beena and Others: A mere permission given to hold the property or to possess the property without having a right of possession as a matter of right would constitute only a license. If exclusive possession was parted with at the time of creation of the relationship as a matter of right and if the answer is affirmative, it would be a lease. Transfer of exclusive possession of the premises under an arrangement alone is not decisive to find out creation of lease, but it would be a strong positive factor constituting creation of lease arrangement and when there is other factors supporting the existence of a lease arrangement, it can be safely acted upon. The crucial question to be considered is what is the intention of parties while entering into the relationship, whether the exclusive possession was handed over to the other party and whether the terms and conditions included would satisfy the creation of a lease rather than a license.18)

To ascertain whether a document creates a license or lease:

  1. the substance of the document must be preferred to the form;
  2. the real test is the intention of the parties - whether they intended to create a lease or a license;
  3. 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 license; and
  4. if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.

Who may grant license

Section 53 of The Indian Easements Act, 1882.

A license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license.

Any person having a transferable interest in immovable property can grant a license consistent with his powers over the property. Compare with Section 8.

Grant may be expressed or implied

Section 54 of The Indian Easements Act, 1882.

The grant of a license may be expressed or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license.

Implied grant: For instance, if a person build on my land believing it to be his own and I, perceiving his mistake, stand by and do not object, the law will presume that he had my implied permission.

An agreement which purports to create an easement is ineffectual for that purpose: For instance, the grant of an easement by a company is void if it is inconsistent with the purpose for which it was incorporated. Thus, the grant by a railway company of a right of way over land taken and used by it for the purpose of a railway and its works is ultra vires but if in pursuance of this grant the grantee has exercised the right of way it will be considered as a license and he will not be considered as a trespasser.

Under English law the grant of an easement must be by deed or by will, hence, if it be attempted to grant an easement otherwise than by deed, the result will be that the person who would have been the dominant owner, if the easement had been properly granted, will merely obtain a license to do the acts which he would have been entitled to do in virtue of the easement if he had acquired it.

Arjan Dev v. Om Parkash: It is not necessary that for purpose of creation of license any instrument be written. Under S.54 of the Act, the grant of license may be express or implied from the conduct of the grantor. Defendant as a younger brother of the plaintiff had been living in his house with their mother as a family member. When he got married and started his kitchen separately, he continued to stay in the same house with the permission of the plaintiff. It did not give any right of easement or interest in the property to the defendant. The defendant was living in the house as brother of the plaintiff and was, therefore, staying in the suit property as a licensee and such license was revocable by notice.19)

Accessory licenses annexed by law

Section 55 of The Indian Easements Act, 1882.

All licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licenses are called accessory licenses.
Illustration: A sells the trees growing on his land to B. B is entitled to go on the land and take away the trees.

Are implied in the constitution of such interest or right: That is, from the very nature of such interest or right it is evident that certain licenses have also been granted with it, they are so to say a part and parcel of such interest or right. They are indispensable for the enjoyment of such interest or right. For instance, if a person lets his land to another with the exception of the trees standing on it and if he wants to sell the trees he has a right to take the purchasers on the premises to show them, for without showing them bargain cannot be made.

License when transferable

Section 56 of The Indian Easements Act, 1882.

Unless a different intention is expressed or necessarily implied, a license to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a license cannot be transferred by the licensee or exercised by his servants or agents.

Illustrations
(a) A grants B a right to walk over A 's field whenever he pleases. The right is not annexed to any immovable property of B. The right cannot be transferred.
(b) The Government grant B a license to erect and use temporary grainsheds on Government land. In the absence of express provision to the contrary, B 's servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.

Scope: The section is so worded that it appears the words “unless a different intention is expressed or necessarily implied” go with the words “a license to attend a place of public entertainment” only and not also with the words “a license cannot be transferred by the licensee”. But the section really means that unless a different intention is expressed or necessarily implied a license to attend a place of public entertainment is transferable and other licenses are not transferable and this is borne out by illustration (b).

Unless a different intention is expressed: For instance, where the license is to B and his assigns.

Or necessarily implied: In illustration (b) the intention of Government that B’s servants may enter on the land is “necessarily implied.”

Grantor's duty to disclose defects

Section 57 of The Indian Easements Act, 1882.

The grantor of a license is bound to disclose to the licensee any defect in the property affected by the license, likely to be dangerous to the person or property of the licensee, of which the grantor is, and the licensee is not, aware.

Grantor's duty not to render property unsafe

Section 58 of The Indian Easements Act, 1882.

The grantor of a license is bound not to do anything likely to render the property affected by the license dangerous to the person or property of the licensee.

Grantor's transferee not bound by license

Section 59 of The Indian Easements Act, 1882.

When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by the license.

Licensor’s transferee is not bound by the license because the transfer operates as an implied revocation of the license, vide Section. 61, illustration (b). This rule further demonstrates the personal character of a mere license.

  • The license ceases the moment the property passes to another from the grantor whether by inheritance or otherwise.20)
  • Section 59 does not lay down that a transferee of property might revoke a license which could not have been revoked by the transferor.21)

License when revocable

Section 60 of The Indian Easements Act, 1882.

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 upon the license, has executed a work of a permanent character and incurred expenses in the execution.

A license in its nature revocable: With the exception of two cases mentioned in section 6o, a license is revocable at the pleasure of the grantor. It is immaterial whether it was obtained for a valuable consideration or not. For instance, if a person purchases a ticket to witness a theatrical performance and in the middle of the performance he is asked to quit the place, the license granted to witness the performance is revoked and after that if he insists to remain till the performance is over, he is a trespasser. His only remedy is to sue for the breach of a contract.

Coupled with a transfer of property

Coupled with a transfer of property means connected with or annexed to a transfer of property. When some property is transferred, and if, in order to enjoy the subject of the transfer it is necessary that the transferee should go or do something on the property of the transferor such license is implied in the very act of transfer and cannot be revoked so long as the transfer remains in force, vide ill. to s. 55. In English books it is called a “license coupled with interest” and has been thus defined by Pollock; If a license is part of a transaction, whereby a lawful interest in some property, besides that which is the immediate subject of the license, is conferred on the licensee, and the license is necessary to his enjoyment of that interest, the license is said to be “coupled with interest”. Where a sale of goods was coupled with a license to leave then on the vendor’s land and remove them afterwards, it was held that the license could not be revoked.

Work of a permanent character

The following have been held to be works of permanent character : A katcha thatched house ; laying out and planting trees ; an irrigation scheme of considerable expense ; erecting a compound wall and flagging the floor with stones.

Case Laws

  1. A licensee cannot by enjoying the license for any length of time acquire rights adverse to that of the licensor and the latter could revoke the license at his pleasure.22)
  2. Denial of licensor’s title is no ground for forfeiture or revocation where licensee had executed' a work of a permanent character.23)
  3. Notice to quit to a licensee before institution of suit for ejectment is unnecessary.
  4. Where the plaintiff grants land to the defendant free of rent for building a house thereon, and the latter has acted on the license, the license cannot thereafter be revoked nor could rent be claimed as damages for use and occupation.24)
  5. A katcha thatched house might be a “work of a permanent character” within the meaning of Section 60 (b) although the thatch of the house is renewed from time to time.25)
  6. Laying out and planting trees is execution of work of a permanent character.26)
  7. Where a license coupled with a transfer of property is granted, the transferee of the licensor is not entitled to revoke such license.27)
  8. Under an oral arrangement plaintiff allowed defendant to execute on the plaintiff’s land an irrigation scheme of considerable expense and permanent benefit to a very large number of villages, held that the agreement created a license which could not be revoked at the instance of the plaintiff.28)
  9. Plaintiff, as a matter of gratitude, allowed the defendant, his medical adviser, to occupy a certain house. The defendant erected a compound wall, fixed up a waterpipe, flagged the floor with stones and erected two huts Held that the improvements executed by the defendant were of a permanent character and that the license was no revocable during the lifetime of the defendant.29)
  10. Section 60 applies only where permission is granted for making permanent works but not where it is grante merely to occupy an already existing house.
  11. License agreement for 10 years. Whether revocable before expiry of such period? Held, license is revocable unless it falls within the purview of S.60(a) or 60(b).30)
  12. Where a license is made for a particular period and a further condition is made to the effect that licensee should not be dispossessed prior to expiry of such a term, it amounts to contracting out. Then, license becomes irrevocable before expiry of such period.31)

Revocation express or implied

Section 61 of The Indian Easements Act, 1882.

The revocation of a license may be express or implied.
Illustrations
(a) A, the owner of a field, grants a license to B, to use a path across it. A, with intent to revoke the license, locks a gate across the path. The license is revoked.
(b) A, the owner of a field, grants a license to B to stack hay on the field. A lets or sells the field to C. The license is revoked.

Licensor demanding vacant possession : Whether amounts to implied revocation? Held, when conduct of licensor clearly shows that he had revoked license, it can be treated as an implied revocation without any further evidence to prove.32)

License when deemed revoked

Section 62 of The Indian Easements Act, 1882.

A license is deemed to be revoked:
(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license;
(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;
(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;
(d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;
(e) where the licensee becomes entitled to the absolute ownership of the property affected by the license;
(f) where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable;
(g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;
(h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;
(i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.

Deemed revoked: Considered as revoked. It means that although the license may not have been revoked either expressly or impliedly by the licensor but under these circumstances it will have the same effect as if it had been revoked.

The rights conferred under S.62 of the Act is subject to the operation of S.60 of the Act. S.62 merely enumerates various circumstances when the right of revocation created under S.60 can be exercised by the licensor as well. If so, then all the disabilities that are created by S.60 in the matter of exercise of that right to revoke the license would run along with that exercise of right of revocation on any of the grounds mentioned in S.62. As such the license in question being irrevocable, cannot be revoked by operation of either S.62(b) or (f) of the Act.33)

For similar rules in case of easements, vide sections 37, 38, 40, 44, 45, 46, 47 and 48 of the Act. The extinction, suspension and revival of easements.

Licensee's rights on revocation

Section 63 of The Indian Easements Act, 1882.

Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property.

It is not proper to evict licensees during the pendency of application for interim injunction restraining eviction.34)

Licensee's rights on eviction

Section 64 of The Indian Easements Act, 1882.

Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.

Where a license has been granted for consideration, etc.: A license can be revoked even if it be for consideration and if the licensee, after revocation, remains on the premises he is a trespasser ; his only remedy, as pointed out in this section, is a suit for compensation if he has been evicted before time. For example, a person is admitted to a place of public entertainment on payment and if he is evicted therefrom before he has enjoyed the treat to the end he is entitled to compensation for the breach of contract.

Even if a licensee has been thrown out forcibly by the licensor after making a demand for the surrender of vacant possession, it cannot be said that the licensee can still protect his possession through a suit. At the same time, in such a case, the licensee may be able to succeed in a litigation for damages under S.64 of the Indian Easement Act.35)

1)
Blyth
2)
AIR 2018 Chh. 189
3)
AIR 2017 J&K 138
4) , 10)
Section. 56
5) , 13) , 15)
Section. 52
6) , 14)
Section. 4
7)
Section. 60
8)
Section. 39
9)
Section. 69
11)
Section. 19
12)
Illustration (d) to Section. 4
16)
2011 (2) KHC 591
17)
2011 (2) KHC 591
18)
2018 KHC 5252
19)
AIR 1992 Del. 202
20)
Karelal v. Badri Prasad
21) , 26)
Ras Beharilal v. Akhai Kumar
22)
Bhaj Raj v. Hardwa
23)
Amjad Khan v. Shafiuddin Khan
24)
Ramdayal v. Nasir Husain Khan
25)
Nasir-ul-zaman Khan v. Azizullah
27)
Partap Shigh v. Dhum Singh
28)
The Secretary of State for India v. Hira Nand Agha
29)
Madho Sudan Das v. Bassuji
30) , 31) , 32) , 35)
2014 (3) KHC 611
33)
Indian Molasses Co. Ltd. v. Kerala State Civil Supplies Corporation Ltd, AIR 2001 Ker. 383
34)
2012 (3) KHC 682


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