IMPORTANT POINT
If a document gives only a right to use the property in a particular way or under certain terms, while it remains in possession and control of the owner thereof, it will be a licence.

ORDER

1. The only narrow question in this appeal is whether in respect of an agreement of lease dated 13.6.1994 executed by the respondents in favour of the appellants, stamp duty under Article 36 of the Bombay Stamp Act, 1958 is payable. Article 36 deals with "lease including an under-lease or sub-lease and any agreement to let or sub-let or any renewal of lease". Explanation III of Article 36 which was in force at the material time, makes it clear that "an agreement of lease shall not be chargeable as a lease unless there is an immediate and present demise".

2. In the present case, the document is on the face of it an agreement to create a lease in future. It is, however, submitted by the respondents that in substance the document itself creates a lease. The document demises immediately and presents an interest in the land in favour of the appellants. If we examine the agreement under clause 1 of the agreement of lease, there is a clear provision that during the period of three years from the date of possession, the licensees (as the appellants are described), shall have a licence and authority only to enter upon the land for the purpose of erecting a building or buildings for the purpose of housing its offices and no other purpose, and until the grant of a lease, the licensee shall be deemed to be a bare licensee only of the said land at the same rent and subject to the same terms including liability for payment of rates, land revenue and taxes, as if the lease had been actually executed.

3. Clause 2 expressly provides that the agreement does not demise any interest in land in favour of the appellants. Clause 2 is as follows:

"2. Not a demise.-Nothing contained in these presents shall be construed as a demise in law of the said land hereby agreed to be demised or any part thereof so as to give to the licensee any legal interest therein until the lease hereby contemplated shall be executed and registered, but the licensee shall only have a licence to enter upon the said land for the purpose of performing this agreement."

4. Clause 7 of the agreement is as follows:

"7. Grant of lease.-As soon as the said officer has certified that the building and works have been erected in accordance with the terms thereof and if the licensee shall have observed all the stipulations and conditions hereinbefore contained, the authority shall grant, and the licensee or his nominee subject to the following conditions shall accept a lease (which shall be executed by the parties in duplicate) of the said land and the building erected thereon for the term of 80 years from the date of possession on payment of ground rent at the following rates.......

Ground rent

The lessee shall have to pay annual ground rent at the following rates, payable annually in advance, without any deductions whatsoever, on the 10th of January in each and every year:

S.No. Year of lease Rate of ground Rates of ground rent payable by rent payable by lessee of land lessee of land     to be used for to be used for commercial & residential pur- paracommer- pose and public cial purpose. amenities.

1. From the   Nil Nil commencement of the terms of                        lease up to the