Delhi District Court
Suit No. 536778 /16 vs Shri Daman Veer Singh on 28 October, 2020
IN THE COURT OF MS. MANSI MALIK : CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 536778 /16
In reference:
(i) Shri Meharban Singh
S/o Shri Labh Singh
R/o B-2/8, First Floor
Model Town
Delhi -110009
(ii) Mrs. Manpreet Kaur
S/o Shri Mehaban Singh
R/o B-2/8, First Floor
Model Town
Delhi -110009 ........... Plaintiffs
VERSUS
Shri Daman Veer Singh
S/o Shri Inderjeet Singh
R/o B-2/8A, Ground Floor
Model Town
Delhi -110009
(ii) Shri Rupinder Singh
S/o Shri Inderjeet Singh
R/o B-2/8A, Front Side
Model Town
Delhi -110009 .......... Defendants
Date of Institution : 02.01.2016
Date of reservation of Judgment : 07.10.2020
Date of Judgment : 28.10.2020.
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 1 of 24
JUDGMENT
1. The present suit has been filed by the plaintiffs against the defendants for declaration and permanent injunction.
FACTS AS PER THE PLAINT :-
2. In brief, the facts of the case are that the plaintiffs no. 1 and 2 i.e. Sh.
Meharban Singh and his wife Mrs. Manpreet Kaur respectively are joint owners having purchased the property from part of B-2/8, Model Town, Delhi-110009 with (a) half share in the land of the property bearing no. B-2/8, Model Town, Delhi-110009 with the entire first floor and entire second floor (terrace) alongwith all rights of easements attached thereto (b) right to use of front lawn for family functions, (c) right to make further construction on the second floor as may be permitted by the relevant authorities from time to time (d) exclusive rights in the side entrance from the driveway to the building, the entire staircase shall be exclusive use of the owners of the first floor and second floor and any floors above that one store away from main building from Mrs. Rita Narang and Mrs. Veena Kosla through Sale deed dated 10.07.2015.
3. That defendants no. 1 and 2 are the owner of the property bearing no.
B-2/8, Model Town, Delhi-110009 situated on the ground floor excluding portions and rights of the plaintiffs which they purchased from Mrs. Veena Khosla vide sale deed dated 28.02.2003.
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 2 of 244. That the property in question was purchased by Sh. Sant Singh and Sh. Ram Chand Bathala, vide sale deed dated 09.08.1962 and that Sh. Sant Singh then transferred his share Sh. Sant Singh (HUF) consisting himself and his four sons.
5. That a partition deed was duly executed and registered dated 07.04.1995 between Sh. Sant Singh (HUF) and Sh. Ram Chand whereby the property was vertically divided between the two. That on the basis of the partition the parties also got mutated their respective shares as B-2/8A in favour of Sh. Sant Singh (HUF) and B-2/8 in favour of Sh. Ram Chand.
6. That thereafter Sh. Ram Chand Bathla divided his property no. B-2/8 between his two daughters namely Smt. Veena Khosla and Smt. Rita Narang by way of registered gift deed dated 06.08.1998.
7. That Smt. Veena Kosla got half share in the land of the property bearing no. B-2/8, Model Town Delhi-110009, with the entire ground floor of the existing construction and the front lawn subject to the condition that Mr. Rita Narang and her family members would have the right to use the front lawn for their family functions, alongwith the store adjacent to the main building except the other store away from the main building and all rights of the easement as attached / appurtenant thereto, with the proportionate freehold rights of the land underneath.
8. That Smt. Rita Narang got a half share in the land of the property Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 3 of 24 bearing no. B-2/8, Model Town, Delhi-110009 with entire first floor and entire second floor (terrace) alongwith all rights of the easements attached appurtenant thereto (b) right to use of front lawn of family functions. (c) right to make further construction on the second floor as may be permitted by the relevant authorities from time to time. (d) exclusive rights in the side entrance from the driveway to the building, the entire staircase shall be exclusive use of the owners of the first floor and second floor and floor above that one store away from main building.
9. That Smt. Veena Khosla sold her share in the property bearing no. B-
2/8, Model Town, Delhi-110009, to defendants vide sale deed dated 28.02.2003. Clause 4 of the said sale deed read as "that the owner of the first floor and second floors Mrs. Rita Narang and her family members shall have right to use the front lawn for family functions only"
10. That Mrs. Veena Khosla and Smt. Rita Narang thereafter sold the other share in the property bearing no. B-2/8, Model Town, Delhi- 110009 to plaintiffs vide sale deed 10.07.2015.
"(a) half share in the land of the property bearing no. B-2/8, Model Town, Delhi-110009 (i.e. ½ share of 989 sq. yards) alongwith the entire first floor and entire second floor, alongwith all rights of easement as attached/appurtenant thereto, (b) right to use of front lawn for family functions, (c) right to make further construction on the second floor as may be permitted by the relevant authorities from time Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 4 of 24 to time (d) exclusive rights in the side entrance from the driveway to the building, the entire staircase shall be exclusive use of the owners of the first floor and second floor and any floors above that one store away from main building from Mrs. Rita Narang and Mrs. Veena Kosla /owners of ground floor)."
11. That the plaintiffs became the exclusive owners of the said portion including the right to sue the front lawn for family functions which right to the plaintiffs is now being denied by the defendants. That the despite the specific condition stipulated in the sale dated 23.02.2003 and 10.07.2015 that the owners of the first & second floor of the property shall use the front lawn from family functions the defendants are now mischievously denying the said right of the plaintiffs. That the defendants have also constructed gates to prevent the plaintiffs to enter the bounds of the front lawn. That the gates are recently installed and were not present previously when the plaintiffs purchased the property. Hence, the present has been filed.
PRAYER:-
12. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(a) That a decree of declaration may be passed declaring that the plaintiffs have a right to have family functions in the front lawn property bearing no. B-2/8, Model Town, Delhi- 110009.
(b) That a decree of prohibition injunction may be passed against the defendants refraining them, their agents or rep-Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 5 of 24
resentatives to interfere with the right of the plaintiffs to use the front lawn for conducting their family functions. (c )Cost of suit may also be awarded in the favour of the plaintiffs and against the defendants.
DEFENCE :-
13. WS has been filed on behalf of the defendants stating that the plaintiffs have no right or title in the property of the defendants and cannot enforce on the defendants any term of an agreement entered between them and some other third person to which the defendants are not even a signatory.
14. It is contended that the present suit is barred by section 11 of the Transfer of Property Act, 1882 and that covenant in favour of Mrs. Rita Narang permitting her to use the front lawn on the ground floor was exclusively for her own self and her family members for family functions, the same was nothing but a pious wish of the late Sh. Ram Chand and property vested in favour of Mrs. Veena Khosla absolutely without any restrictions and the plaintiffs, who are purchasers of the first floor of the premises from Mrs. Rita Narang, have no right whatsoever to claim up any right in the front lawn of the defendants, who are purchasers of inter alia the ground floor including front lawn from Mrs. Veena Khosla for valid sale consideration of the said property.
15. It is further contended that the same was nothing more than a personal right akin to a license and the same is non-transferable and non-
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 6 of 24alienable and extinguished with the exit of Mrs. Rita Narang from the said property and same could not have been conveyed by her to the plaintiffs.
16. It is also contended that plaintiff very cleverly abridged and converted this into "right to use the front lawn for family functions" thereby giving it generic meaning and open to all and had it included in their sale deed with the vendors whereas the vendors themselves did not have this right with them alienate in the first floor. Thus, the said clause in the sale deed of the plaintiffs is superfluous and non- enforceable against the defendants.
17. It is stated that the property vested in favour of Mrs. Veena Khosla absolutely, without any restrictions and that Sh. Ram Chand while gifting the property absolutely in the favour of his daughter Ms. Veena Khosla, to the exclusion of all others, could not have imposed any restrictions on her right to enjoyment of the said property, in view of the mandate of section 11 of the Transfer of Property Act, 1882, thus, the restriction imposed in the gift deed is otiose and void ab initio.
18. It is contended that sale deed 22.02.2003 was between the defendants and Ms. Veena Khosla and there was no clause therein which states that plaintiffs herein were entitled to use the front lawn of the defendant. It is further contended that the plaintiffs are not part of the family of Mrs. Rita Narang and as regarding the sale deed dated 10.07.2015, as already mentioned above, vendors themselves did not have any right to create a 3rd party right in the front lawn of the Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 7 of 24 defendants and it was not owned by them so as to be alienated in the first place.
REPLICATION:-
19. No replication has been filed in the present matter.
ISSUES:-
20. Vide order dated 15.09.2016, the following issues have been framed:
(1) Whether plaintiff is entitled to the relief of declaration as prayed for? OPP.
(2)Whether the plaintiff is entitled for the relief of prohibitory injunction? OPP.
(3)Whether the present suit is hit by the bar of section
11 of Transfer of Property Act? OPD.
DOCUMENTS & EVIDENCE:-
21. In support of the case of the plaintiff, plaintiff has examined himself as PW1 by way of affidavit Ex.PW1/A and has relied upon the following documents:
(a) Site plan of the suit property is Ex.PW1/1.
(b) Copy of the partition deed duly executed and registered dated 07.04.1995 between Sant Singh and Shri Ram Chand Bathla B-2/8A And B-2/8 respectively is Ex.PW1/2.
(c) Copy of the partition dated 02.08.1995 between father of the deponent and defendants for B-2/8A with deeds of partition of HUF & relinquishment is Ex.PW1/3 (Colly).Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 8 of 24
(d) Copy of gift deed dated 06.08.1995 executed by Shri Ram Chand Bathla in favour of Mrs. Veena Khosla and Mrs. Rita Narang for B-2/8 is Ex.PW1/4.
(e) Copy of sale deed dated 28.02.2003 executed by Mrs. Veena Khosla in favour of the deponent and his wife for part B-2/A is Ex.PW1/5.
(f) Copy of sale deed dated 10.07.2015 alongwith with the possession letter and receipt executed by Mrs. Veena Khosla and Mrs. Rita Narang in favour of the deponent and his wife for part B-2/8 is Ex.PW1/6 (Collly).
(g) Copy of the four photographs of the function held in the front lawn of B-2/8 by Mrs. Rita Narang is Ex.PW1/7.
22. Further, in support of their case, the plaintiffs have examined Mr. Anil Kumar Narang as PW2 by way of affidavit Ex.PW2/A and relied upon the documents i.e. Ex.PW1/1, Ex.PW1/5 and Ex.PW1/6 which are already exhibited in the testimony of PW-1.
23. Thereafter, the plaintiffs have examined Mrs. Rita Narang as PW3 by way of affidavit Ex.PW2/A and relied upon the documents i.e. Ex.PW1/1, and Ex.PW1/6 which already exhibited in the testimony of PW-1.
24. In defence, the defendants have examined Shri Daban Veer Singh as DW1 by way of affidavit Ex.DW1/A. Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 9 of 24 FINAL ARGUMENTS:-
25. The case of the plaintiffs is that plaintiffs are joint owners of the suit property forming part of the B-2/8, Model Town, Delhi-110009 with half share in the land of property alongwith entire first floor and entire second floor (terrace) alongwith all rights of the easements attached thereto i.e. right to use the front lawn for family functions. It is only this right to use the front lawn for family functions that is in contention in the present case.
26. It is submitted by the plaintiff that the property in question was purchased by the plaintiffs from one Mrs. Veena Kosla and Mrs. Rita Narang and in view of the same, the plaintiffs became the exclusive owners of the said portion including the right to use the front lawn for family function, which right of the plaintiffs is now denied by the defendants. It is submitted that despite the specific conditions stipulated in the sale deed 23.02.2003 and 10.07.2015 that the owners of the first and second floor of the property shall use the front lawn, the defendants are now denying the said right of the plaintiffs. The main stand of the plaintiffs is that he is entitled to use the said front lawn in the capacity of a licensee and that the said license is not revocable in view of section 60 (a) of the Easements Act. It is also stated that the right is a contractual obligation on the defendants as it is mentioned in the sale deed of the plaintiffs as well of the defendants by way of which they have purchased respective properties. Per contra, the case of defendants is that the convent in question in favour of Mrs. Rita Narang permitting her to use the front lawn on the ground Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 10 of 24 floor was exclusively for her own self and her family members for family functions and same was only the pious wish of late Sh. Ram Chand and the property vested in favour of Mrs. Veena Khosla without any restrictions and the plaintiffs who are the purchasers of the first floor of premises from Mrs. Rita Narang, have no right to in the front lawn of the defendants who are purchasers of the ground floor including the front lawn from Mrs. Veena Khosla for valid consideration of the suit property. It is submitted that the above- mentioned convent is hit by Section 11 of the Transfer of Property Act. As per Section 11, while gifting a property absolutely to a person, the doner could not have imposed any restriction on the right of the donee to enjoy the said property, thus, the restriction imposed in the gift deed is void ab-initio. It is also stated that the covenant in question was not more than a personal right and was akin to a license and the same is non-transferable and non-amenable and it, therefore, extinguished with the exit of Mrs. Rita Narang from the said property when she sold the property to the defendants.
FINDINGS:-
27. My issues wise findings are as under:-
Issue no. (3 )Whether the present suit is hit by the bar of section 11 of Transfer of Property Act? OPD.
28. The onus to prove the aforesaid issue lies on the defendant.
29. Ld. Counsel for defendant submits that the present suit is barred by Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 11 of 24 Section 11 of the Transfer of Property Act, 1882. Section 11 is reproduced below for convenience:
"11. Restriction repugnant to interest created.--Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof."
30. As per Section 11, when a property is transferred absolutely to a person, no condition can be imposed on the transferee, which limits or restricts his enjoyment of the property. In the present case, one Sh. Ram Chand Bathla transferred his property by way of gift deed to his two daughters Mrs. Veena Khosla and Mrs. Rita Narang. Mrs. Veena Khosla was gifted the ground floor along with the front lawn and Smt. Rita Narang was gifted the entire first floor and entire second floor (terrace) alongwith all rights of the easements attached thereto i.e. right to use the front lawn for family functions. The plaintiff thereafter purchased the ground floor along with the front lawn from Mrs. Veena Khosla and the defendant purchased the entire first floor and entire Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 12 of 24 second floor (terrace) alongwith all rights of the easements attached thereto i.e. right to use the front lawn for family functions from Mrs. Rita Narang.
31. It is submitted by the Counsel for the defendant that the clause in the gift deed stating that Smt. Rita Narang has a right to use the front lawn is hit by Section 11 TPA.
32. Section 11 of the Transfer of Property Act embodies the cardinal principle that a transferee of property, who takes an absolute interest, cannot be restrained in his enjoyment or disposition of it by any condition inserted in the transfer. Such a condition deprives the property of its legal incidents and is inconsistent with or repugnant to the main purpose of the transfer.1 Section 11 rests on the principle that any condition which is repugnant to the interest created is void and when property is absolutely transferred, it must be done with all its legal incidents. (Indu Kakkar v Haryana State Industrial Development Corporation 1999 2 SCC 37)
33. For Section 11 to apply, the interest in the property has to be transferred absolutely by the transferor to the transferee. In the present case, the property which the plaintiff is claiming that he has a right to use i.e. front lawn has been transferred by way of gift to Smt. Veena Khosla by her father. The validity of the gift has not been challenged by any of the parties and hence the gift has transferred the interest absolutely to Smt. Veena Khosla from whom the defendant has 1 BB Mitra, Transfer of Property Act, 1882.
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 13 of 24purchased the property by way of sale deed.
34. Further, Section 11 states that if the terms of the transfer direct that the interest shall be applied or enjoyed by the donee in a particular manner, the donee shall be entitled to receive and dispose of such interest as if there were no such direction. This essentially implies that the donor cannot impose any condition on the use of the property by the donee and if any such condition is imposed it will be treated as if no such condition ever existed.
35. The defendant has contended that the clause in the gift deed, which states that Mrs. Rita Narang has a right to use the front lawn for family functions imposes a condition on the use of the property by the donee and therefore the covenant is void ab initio. Per contra, Ld. Counsel for the plaintiff has stated that the condition that the front lawn can be used by the plaintiff for the purpose of family functions does not place any embargo on the use of the lawn by the defendant and hence the bar of Section 11 is not applicable.
36. In the considered opinion of the Court, the condition/covenant in the gift deed which states that the front lawn can be used by Mrs. Rita Narang for family functions does restrict the enjoyment of the lawn by Mrs. Veena Khosla and the subsequent assignees i.e. the defendants. When a person is given the liberty to enjoy a property, albeit for limited purpose, the same does automatically restrict the enjoyment of the property by the other person to some extent. The clause in the gift deed does direct the transferee/donee of the specific portion, Mrs. Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 14 of 24 Veena Khosla, to enjoy the property in a particular manner i.e. by letting Mrs. Rita Narang use it for family functions. Therefore, in view of the Court, the covenant in the gift deed falls squarely within the purview of Section 11 TPA and the gift deed shall have such effect as if no such direction existed. The gift deed shall be given effect to as if no such condition existed.
37. The second para of Section 11 itself carves out an exception to the embargo placed in the first para. It saves the covenants between the transferor and transferee, by which the transferee is required to do something or abstain from doing something to secure the beneficial enjoyment of another piece of immovable property of the transferor. However, the only person entitled to impose and enforce such a condition is the transferor and that too only for the beneficial enjoyment of the portion retained by him at the time of transfer. The transferor cannot impose such a condition for the benefit of another person.
38. In the present case, the covenant in the sale deed is not for the beneficial enjoyment of the property retained by the transferor i.e Sh. Ram Chand but a third person i.e. Mrs. Rita Narang, hence the covenant is not saved by the second para of Section 11. Further, from a reading of the covenant in question it is not clear as to how the covenant stating that Smt. Rita Narang has the right to use the front lawn for family functions is for the beneficial enjoyment of her property that i.e. the first and the second floor. The covenant in question does not help in the beneficial enjoyment of property of the Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 15 of 24 transferor and hence is not saved by the second para of Section 11 TPA.
39. In view of the aforesaid discussion, it is held that the present suit is not maintainable as the covenant in the gift deed for the enforcement of which the present case has been filed it hit by Section 11 TPA and hence is unenforceable.
40. Issue is decided in favour of the defendant and against the plaintiff.
Issue no. (1) Whether plaintiff is entitled to the relief of declaration as prayed for? OPP.
Issue no. (2)Whether the plaintiff is entitled for the relief of prohibitory injunction? OPP.
41. Although, issue no. 3 has been decided in favour of the defendant wherein the present suit has been held to be not maintainable as hit by Section 11 TPA, but the present Court has to decide all the issues framed in accordance with Order 14 Rule 2 CPC.
42. As both the issues are interconnected they will be decided upon together.
43. The onus to prove the aforesaid issues lies on the plaintiff.
44. The Ld. Counsel for the plaintiff has submitted that the plaintiff has the right to use the front lawn in question for family functions in the Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 16 of 24 capacity of a licensee and that the said license is not revocable in view of section 60 (a) of the Indian Easements Act, 1882. He has stated that Section 60(a) is an exception to Section 11 of the Transfer of Property Act. It is also stated that the right to use the front lawn is a contractual obligation on the defendants as it is mentioned in the sale deed of the plaintiffs as well of the defendants by way of which they have purchased their respective properties. The plaintiff has contended that he has the right to use the front lawn in the capacity of a licensee. It is pertinent to then go into the definition of a license. License is defined in Section 52 of the Indian Easements Act, 1882. The same is reproduced below:
"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."
45. A license grants a right to a person to do something upon the immovable property of the grantor which would in the absence of such right be unlawful. A license by its very nature is not assignable, is revocable and is determined when the grantor makes subsequent assignment. A license is of two types: a bare license which is purely a matter of personal privilege and a license coupled with a grant or Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 17 of 24 interest.2 The former category is revocable at the will of the grantor and is not assignable and the latter category is not revocable as per Section 60(a) of the Easements Act.
46. In the present case, the Ld. Counsel for the plaintiff has argued that the right given to Mrs. Rita Narang by Sh. Ram Chand to use the front lawn for family functions is a license coupled with the transfer in property and therefore is not revocable in accordance with Section 60(a) of the Easements Act.
47. Section 52 states that a license given by the grantor/licensor to the licensee gives a right to the licensee to do or continue to do something on the property of the grantor. It is necessary to note here that that the grantor can only grant a right to any person to do something on his own property. For example "A", owner of a property, can grant a license to "B" to do something on his own property. However, when "A" has already transferred his property to "C", "A" cannot then grant a license to "B" to do an act on the property as "A" is himself not the owner of the property anymore and hence cannot grant any license to any person with regard to that property.
48. Applying the aforesaid stated position to the present case, it can be said that once Sh. Ram Chand transferred the property to Mrs. Veena Khosla by way of gift deed, Mrs. Veena Khosla became the absolute owner of the property in question and thereafter it was only her or the 2 Sanjiv Row's, The Indian Easement Act, 1882 and Licenses, 8th Edition, Delhi Law House.
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 18 of 24subsequent assignees of the property who could have granted a license to any third person to use the front lawn for family functions and not Sh. Ram Chand. Therefore, the plaintiff does not fall in the definition of licensee as stated in Section 52 of the Indian Easements Act, 1882 and cannot take advantage of the same.
49. However, even otherwise if is held that the Mrs. Rita Narang was a licensee as per the Gift deed and that she had the right to use the front lawn in the capacity of a licensee, it still has to be seen whether the license falls under the purview of Section 60(a) of the Easements Act, 1882 and can be termed as irrevocable.
Section 60(a) of the Easements Act, 1882 states:
"60. License when revocable.-A license may be revoked by the grantor, unless-
(a) it is coupled with a transfer of property and such transfer is in force;"
50. As discussed above, a license is of two types: a bare license, which is purely a matter of personal privilege, and a license coupled with a grant or interest. It is only the latter to which Section 60(a) applies.
51. The plaintiff has placed on record the judgment of the Hon'ble Bombay High Court in the case of Vishwanath Sawant vs Gandabhai Kikabhai (1990 (2) BomCR 406). The judgment elaborates upon the difference between a bare license and a license coupled with a grant or interest. The relevant portion of the judgment at para number 21 is reproduced below:
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 19 of 24"........If a person is allowed to do something on the land without interfering with the nature of the land or without taking any profits from it, it could be described to be case of a bare licence. Thus if A is allowed just to pass over the land of B, such an interest can properly be described as a bare licence. A merely walks over the land. He has no right to occupy it. He does not take any profits out of it. He does not enjoy the land or its profits in any way. He is merely allowed to do an act on the land which, but for the permission, would be unlawful. The position, however, would be quite different if B allows A not only to pass over his land, but also to take exclusive possession of the same, to plant trees over it or to set up cattle troughs or to prepare cow-dung cakes on it or to put up constructions of a permanent nature on it to cultivate it by carrying on agricultural operations on the same on payment of rent in respect of it. The interest carved out in this fashion cannot be termed to be a bare licence or a licence pure and simple. It is an interest of a complex nature comprising within itself composite features both of a licence as well as of a grant. In so far as it allows the licensee to do some act on the land it partakes of the character of a licensee. In so far however as it further allows the licensee to hold exclusive possession of the land, to use it for his own personal enjoyment, to plant trees on the same and to benefit himself by the fruits of the said trees, to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce, the transaction presents the features of a grant. A transaction like this may be described be as a licence-cum-grant."
52. In accordance with the above judgment, the license granted in the present case is only a bare license as it only gives the licensee/plaintiff a right to use the front lawn for family functions and that no interest in the land has been transferred to the licensee/plaintiff alongwith the license. He has only been granted permission to do a certain act on the land i.e. conduct family functions on the front lawn but except that no interest in the land has been granted to him to qualify it as a license cum grant.
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 20 of 2453. Therefore, the license in the present case is only a bare license and not a license cum grant or a license coupled with a transfer of an interest in the property and thus Section 60(a) of the Easements Act will not be applicable to it. The non-applicability of Section 60(a) makes the license revocable in nature.
54. As the license is only a bare license in nature, firstly, it is not assignable and secondly, it can be revoked at any time at the will of the grantor. Being non assignable, the license was only granted to Mrs. Rita Narang and her family for her personal use and therefore it could not have been transferred or further assigned by her when she transferred/sold her property to the plaintiff. Also, such a license also determines as soon as the property is subsequently assigned. Thus, when the property including the front lawn was transferred by Smt. Veena Khosla to the present defendant, the license was determined and no longer was in existence.
55. Further, the present owner of the property on which the license has been granted would be considered to be the grantor and the license being revocable on the will of the grantor, the present owner that is the defendant is not under any obligation to grant any license to the plaintiff and the license is revocable at his will.
56. Another argument advanced by the Ld. Counsel for plaintiff is that the right to use the front lawn of the plaintiff is a contractual obligation on the defendants as it is mentioned in the sale deed of the plaintiff dated 10.07.2015 as well as the sale deed of the defendant dated 28.02.2003 Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 21 of 24 and thus they cannot now not comply with the terms of the contract.
57. Ld. Counsel for the plaintiff has placed on record the judgment of the Hon'ble High Court of Delhi in the case of M/s. Saptagiri Restaurant v. Airports Authority of India (2015 SCC OnLine Del 9555: (2015) 151 DRJ 116). The judgment states that a license, which may not be irrevocable as per Section 60, Indian Easements Act, 1882, may still be irrevocable in nature if the parties enter into an agreement making the license irrevocable. It holds that the parties may enter into agreement, stating the license to be revocable or irrevocable in nature. The intention of the parties to the contract is thus relevant for determining whether a license if revocable or irrevocable.
58. In the instant case, the contract i.e. the sale deed dated 10.07.2015 upon which the plaintiff relies is between the plaintiff himself and Mrs. Rita Narang stating that the plaintiff has a right to use the front lawn. Thus, defendant not being a party to the sale deed cannot be compelled to comply with the same. Further, even if we go back to the original source from which the covenant in question took birth i.e. the gift deed, the intention of the donee has to be ascertained from the terms of the same. The gift deed Ex. PW1/4 was executed by Sh.Ram Chand in favour of his daughters wherein he gifted the ground floor alongwith the front lawn to one of the daughters and the first floor and the second floor to the other daughter. It is pertinent to mention here that the schedule of the property gifted mentioned in the gift deed specifically lists the areas given to each daughter exclusively and also mentions the areas for common use by both the daughters. The front Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 22 of 24 lawn is not mentioned in the common areas which shows that the intention of the donee was not to give both the daughters equal right to use it.
59. Further, Sh. Ram Chand had given one daughter the right to use the front lawn as the same was gifted to the other daughter. The intention which can be gathered from the stipulation is that the father imposed such a condition on Smt. Veena Khosla, one of the daughters, out of love and affection and was of the opinion that as the property in question is between the daughters such a condition would be justified. However, the Court cannot discern as to how the intention can be to enforce the covenant between absolute strangers. Both the daughters subsequently sold their respective shares to the plaintiff and the defendant who are strangers to each other. The intention can never be to compel a person who owns the ground floor to allow a stranger who resides on the first floor or the second floor to use his lawn for family functions.
60. Therefore, from a reading of the gift deed i.e. Ex. PW1/4, the only intention which can be ascertained is that the license was only granted by Sh. Ram Chand to Ms. Rita Narnag and her family and the intention was not to treat it as irrevocable license which would pass on the subsequent purchasers. In view of the Court, even from this aspect the license in the present case cannot be treated as irrevocable in nature.
61. In view of the aforesaid discussion, it is held that the plaintiff failed to Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 23 of 24 prove that his case falls within Section 60(a) of the Indian Easements Act, 1988 or that the license is contractual obligation and that he is entitled to the reliefs claimed by him. As already stated, the present matter is not maintainable as the covenant in the gift deed for the enforcement of which the present case has been filed it hit by Section 11 TPA.
62. Both the issues are accordingly decided in favour of the defendants and against the plaintiffs.
63. In view of the finding arrived at on issue no.3, the present suit is dismissed.
64. No order as to costs is made.
65. Decree sheet be prepared accordingly.
66. File be consigned to the record room after necessary compliance.
MANSI Digitally signed by MANSI MALIK
DN: c=IN, o=OFFICE OF DISTRICT AND
SESSIONS JUDGE DELHI, ou=DELHI
DISTRICT COURTS,
2.5.4.20=4b3b47ca785db5164abb31f
ANNOUNCED IN THE OPEN MALIK
399c921c87a7147c3069b062fd730f3b
ccec2e134, postalCode=110085,
st=DELHI, cn=MANSI MALIK
Date: 2020.10.29 16:33:41 +05'30'
COURT ON 28.10.2020
(MANSI MALIK)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/28.10.2020
Suit No. . 536778 Sh. Meharban Singh & Anr. Vs. Sh. Daman Veer Singh & Anr. Page 24 of 24