J.B. Koshy, J

Petitioners are petty traders. They have taken on rent the shop rooms of first respondent Municipality. It is also stated in the Original Petition that they are in possession of the respective rooms for the past

several years. It is also stated in the Original Petition that first petitioner was holding the room Nos. 8 and 9 on a monthly rent of Rs. 573/- and 608/- which was subsequently enhanced to Rs. 678.60 and 729.60 respectively. With regard to the rent paid by others also details are mentioned in the Original Petition itself. Specimen copy of the agreement is produced as Ext. P1. In the agreement the arrangement is termed as licence. The rooms were constructed by the Municipality and the terms of the licence provided payment of a non-refundable premium and monthly rent. In paragraph 4 of Ext. P1 the word 'rent' is used. In paragraph 9(1) the amount is called as 'monthly licence fee rent.' In paragraph 8 it is stated as follows:

"8. To surrender vacant possession of the premises with fixtures and additions thereto and all the improvements, if any, effected by the licencee on the property without claiming or getting any compensation for the improvements so effected at the termination of the licencer or at the time of expiry of the period of licence in good and tenable repair and condition in accordance with the covenants herein contained."

Officers of the Municipality are also given right to inspect the condition of the rooms from time to time and are allowed to carry out the repairs. It is also agreed that alteration can be done only with the permission of the Municipality. Consequent upon the circular of the Government, notice was issued by the Municipality to execute proper agreement in stamp paper as provided under the Kerala Stamp Act failing which they will be evicted and the petitioners approached this Court when Ext. P2 and similar notices were issued to them.

2. The only question to be considered is whether Ext. P1 agreement creates a 'lease' within the meaning of S.3(1) of the Kerala Stamp Act so as to attract stamp duty as provided under Art.33 of the Act. The word 'lease' has acquired a meaning in the legal and commercial circle in view of the definition of lease in Transfer of Property Act, 1882 unless otherwise defined. Since only an inclusive definition is. given in the Stamp Act, definition of lease in the Transfer of Property Act has to be gone through to find out the transaction in a lease or licence. In S.105 of the Transfer of Property Act the 'lease' is defined as follows:

"105. Lease defined.- A lease of immovable property is a transfer of a right to enjoy such property, made for acertain 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".

It is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. An agreement executed by the highest bidder of the right to pluck, cut, carry away and appropriate forest produce for a period was only a licence as held by the Supreme Court in Revenue Board v. A.M. Ansari (AIR 1976 SC 1813). But here possession of the rooms is transferred to the petitioners on monthly rent for doing business and facts are different.

3. A reading of Ext. P1 clearly shows that even though the word 'licence' is used in the agreement, possession of the rooms in question is transferred to the petitioners for the period of the agreement exclusively, even though Municipality can enter into the rooms with notice periodically for inspection and carrying out the repairs. It is not a case where the petitioners were given right to enter and do something for a particular time. It is also not an agreement to collect and remove something. The decision of this Court in Anandan v. Dy. Directo