Contractual Documents : Leave and License Agreement

Contractual Documents : Leave and License Agreement

Question: What is Leave and License Agreement ?

Answer:Though agreements are prepared as Leave and License Agreement but there is no statutory definition for the same in India. One of the dictionary meaning of "Leave" is permission to do something and statutory definition of License is "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" as per section 52 of the Indian Easement Act 1882 (5 of 1882).

The word license (also Licence) should not be confused with the license issued either by the Government or any local or other authority to conduct a business, to produce or sell any article etc means permission by the the Government or any local or other authority to do a particular activity.

The License i.e. the subject mater of conveyancing is a right to do, or continue to do, in or upon the immovable property of the grantor and such right does not amount to an easement or an interest in the property. 

Section 4 of the Indian Easement Act defines An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.



Though the easement is a right of the owner and the occupier as well and further licensee after getting license becomes occupier does not get this right (easement).


So far as the  the an interest in the property is concern, the same has not been defined anywhere in the Indian Statues. Some judicial pronouncements have been delivered upon this by the Hon'ble Court in India but the same are also not elucidative. A licence is a privilege to do something in a property, otherwise not permissible. Suresh Chander Vohra v Union of India A. I. R. 1987 Delhi 154




 

Adult children need parents’ approval to stay with them: Bombay high court
MUMBAI: Children, after becoming adults, need their parents' permission to stay in their personal property, the Bombay high court has observed. The court was hearing a dispute over a flat between a 73-year-old resident of Dadar Parsi colony and his 35-year-old daughter who he wants kept out of his house.

"It is the responsibility of parents to take care of their minor children, but after children have attained majority, they do not get legal rights to reside in the personal property of their parents," said Justice J H Bhatia. "They can live in the house of the parents only with the consent of their parents and not otherwise."

The court observed that in the case of daughters, when they get married they become part of the husband's family. "When a daughter gets married and leaves the house of the father to reside with her husband, she ceases to be a member of the father's family and becomes a member of the family of the husband where she has got certain rights under the law. After marriage when she goes to the house of the parents, legally she is only a guest in the house and does not have a legal right to continue there. She can stay there as long as her parents permit her but she cannot force herself on her parents in the house."

The court rejected Kashmira Robert Lobo nee Kashmira Soli Batiwala's pleas that she should be recognized as a tenant in the Dadar Parsi Colony flat that was originally in the name of her grandmother.

'Tenancy can't be transferred to grandkids'

The judge said that since her father, Soli Bahadurji Batiwala, was alive he would be the deemed tenant and her rights would come into effect only after he passed away.

"When the tenant (the grandmother) was living with her children, at the time of her death, her grandchildren cannot be treated as members of her family and the tenancy cannot be deemed to have been transferred ,'' said the judges.

The flat which is at the centre of the dispute is located in , Parsi Colony, Dadar (East). The flat belongs to the Parsee Central Association Co-operative Housing Society Ltd and Batiwala's mother was the original tenant. When she passed away in 1980, the tenancy was transferred in the name of Batiwala . Batiwala's daughter married in 1998 and went to live with her husband. Last year, Batiwala moved the city civil court seeking an injunction against his daughter and her husband.

He urged the court to restrain his daughter and his son-in-law from interfering in his possession of the property and restrain them from entering or staying in the Parsi Colony flat.

Kashmira objected, saying she was a deemed tenant in her grandmother's property and said the matter should be referred to the small causes court, which hears disputes arising out of tenancy matters. The civil court dismissed her application, following which the case came up before the HC.

Justice Bhatia said that when Kashmira's grandmother died, her father as the son would be the deemed tenant. "His daughter, who was just aged about four years at the time of death of her grandmother, could not be deemed a tenant in respect of premises on the death of her grandmother," said the judge, adding, "After the death of the parents, she may have certain rights in their property but during the lifetime of the parents, she cannot claim any right in the property of her parents." The court refused to stay the order.
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