1955 Supreme(Ori) 39

HIGH COURT OF ORISSA
PANIGRAHI,RAO, JJ.
Mohammed Khan
Versus
Ramnarayan Misra
First Appeal No. 37 of 1949
Decided On : 01-08-1955

Headnote:

KENDU LEAVES COLLECTION LICENSE - IRREVOCABILITY - TRANSFER OF PROPERTY - SECTION 60, INDIAN EASEMENTS ACT - APPLICABILITY - INALIENABLE ZAMINDARI - LICENSE REVOCATION ON GRANTOR'S DEATH - SECTION 62(A), INDIAN EASEMENTS ACT - APPLICABILITY - MESNE PROFITS - QUANTUM - RELEVANT CONSIDERATIONS.

Fact of the Case:

Plaintiffs sued for declaration of their sole right to collect, remove, and sell Kendu leaves from the borders of the Garloisingh Zamindari, and for recovery of a sum of Rs. 88200/- from the defendants for "wrongful collection and removal" of the same during the years 1944 to 1946. The plaintiffs also prayed for an injunction restraining the defendants from interfering with their right to collect Kendu leaves in future, for the period covered by the contract entered into between the plaintiffs and the deceased Zamindar, Madan Mohan Singh.

Finding of the Court:

1. The contract, Ex. 19, described as a lease for 15 years, executed by the late zamindar Madan Mohan Singh, on 29-1-1938, is a license coupled with a grant and as such it is ordinarily irrevocable. 2. The Indian Easements Act is applicable to the district of Sambalpur and the rights of the parties will have to be determined by the provisions of the Act. 3. The license became extinguished when the grantors interest in the zamindari ceased. 4. The applicability of S. 60, Indian Easements Act does not arise as the grantor did not revoke the contract at all. 5. The true position is that the license became extinguished when the grantors interest in the zamindari ceased. 6. The plaintiffs entered into a contract, with notice of defendants possession and of a subsisting contract in his favour. They did nothing under the contract except to wait from 1938 till 1947 and then came up with a claim for recovery of mesne profits. 7. In these circumstances the license was terminable at the will of the licensor if he had continued to live. 8. Any clog or fetter created on the estate by the zamindar would not enure beyond his lifetime. 9. S. 62(a) provides for such a contingency and governs the case. 10. The plaintiffs are not entitled to any mesne profits.

Issues: 1. Whether the contract, Ex. 19, described as a lease for 15 years, executed by the late zamindar Madan Mohan Singh, on 29-1-1938, is a license coupled with a grant and as such it is ordinarily irrevocable? 2. Whether the Indian Easements Act is applicable to the district of Sambalpur and the rights of the parties will have to be determined by the provisions of the Act? 3. Whether the applicability of S. 60, Indian Easements Act does not arise as the grantor did not revoke the contract at all? 4. Whether the true position is that the license became extinguished when the grantors interest in the zamindari ceased? 5. Whether the plaintiffs entered into a contract, with notice of defendants possession and of a subsisting contract in his favour. They did nothing under the contract except to wait from 1938 till 1947 and then came up with a claim for recovery of mesne profits? 6. Whether in these circumstances the license was terminable at the will of the licensor if he had continued to live? 7. Whether any clog or fetter created on the estate by the zamindar would not enure beyond his lifetime? 8. Whether S. 62(a) provides for such a contingency and governs the case? 9. Whether the plaintiffs are entitled to any mesne profits?

Ratio Decidendi: 1. A license is defined in S. 52, Indian Easements Act as 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. 2. License is purely a permissive right, and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable except in certain circumstances expressly provided for in the Act itself. 3. The license has no other effect than to confer a liberty upon the licensee to go upon the land which would otherwise be unlawful. 4. A licensee must, hold the land in respect of which the right or privilege is created before he can seek to enforce the covenant under the document. 5. It is not enough that he has a contract in his favour. He must continue to have an interest in the subject-matter of the contract before a right of injunction or damages can be conceded. 6. When the exercise of the rights conferred by the license involves nothing beyond, there can be no reason to urge against the existence of a power to determine the license brevi manu, at the will of the licensor. 7. But if the exercise of the right may have involved the licensee in obligations in other directions the licensee would be entitled to notice before it is revoked so as to give him breathing space or make alternative arrangement. 8. A license, the consideration for which is stipulated to be a periodic payment is revocable on notice, although there was no express provision providing for such revocation. 9. Such a contract conveys no interest in land, but is purely a license for value. 10. If the consideration takes the form of a periodic payment as was the case in Winter Garden Theatre case (J), it is nonetheless revocable and a notice would be required if the licensee is in possession of the premises. 11. Even if the revocation be in breach of the contract, the licensee has no right to enter upon the premises and his entry will be an act of trespass. 12. The grant of profits a prendre is therefore regarded as a part of the law of easements in India. 13. The separation that obtains in England of easement and profits a prendre was not adopted by the Indian Legislature. 14. Any argument therefore based on analogy with the law of England is not only incorrect, but also misleading. 15. A privilege granted by way of a license to hunt or shoot over anothers land amounts to the grant of an incorporeal hereditament and is therefore land and is a part of the law of property in England. 16. In India, however, the position is different. The grant of profits a prendre in gross being unconnected with land, cannot be annexed as an incident to it, and is merely a personal right. 17. If the grantee does not claim the right by reason of ownership of a dominant heritage, he acquires only a contractual right to enjoy the profits ands nothing more. 18. Nor can such grants be regarded as a lease as defined in the Transfer of Property Act as exclusive possession has not been transferred by the grantor to the grantee. 19. The contract between the parties does not create any right beyond a power to walk on the zamindars land and pluck kendu leaves. 20. In a lease there is warranty of possession, but a mere license conveys no such warranty. 21. It has, therefore, to be held that a document which does not give exclusive possession can take effect only as a license. 22. The zamindari of Garloisingh is one of the ten zamindaries held by Gonds on feudal tenures. 23. The zamindari is impartible and inalienable and is governed by the law of primogeniture. 24. The license granted by him, therefore, would not enure beyond the executants lifetime. 25. Any interest created by the zamindar ceases on his death, and the licensee becomes a trespasser alter the licensors death.

Final Decision: Appeal allowed.