N.V.RAMANA,CJI. - (1.) This appeal is filed against the judgment of the Bombay High Court, in Second Appeal No. 537 of 1991, wherein the second appeal was allowed in favour of the respondent and the decree in favour of the appellant herein was set aside.
(2.) This case arises out of a contract entered into between the Appellant (since deceased represented through Legal Heirs) and the Respondent. Initially Appellant 's husband was running a business of stationary in the name of "Karandikar Brothers" before his untimely demise in the year 1962. After his demise, she continued the business for some time. After a while, she was unable to run the business and accordingly decided to let the Respondent run the same for some time. She entered into an agreement dated 07.02.1963, wherein following terms were reduced in writing: "2. For the last about 24 to 25 years, a stationary shop by the name Karandikar Brothers belonging to you of the stationary, note books and books is being run in the premises situated in City Survey no. 196/66 (New House No. 1643) at Sadashiv Peth, Pune. I request to you to give the said shop to me for running the same. Accordingly, you agreed for the same. Accordingly, an agreement was reached between us. The terms and conditions whereof are as follows: A. The stationary shop · by name "Karandikar Brothers" belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para l(b) above belonging to you is existing is being taken by me for conducting by an agreement for a period of two years beginning from 1st February 1963 to 31st January 1965. B. The rent of the shop described in Para 1 (a) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90 /-(Rupees Ninety only) for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month."
(3.) Time after time, the contract was duly extended. In 1980s, desiring to start her husband 's business again, appellant herein issued a notice dated 20.12.1980 requesting the Respondent herein to vacate the suit premises by 31.01.1981. The Respondent replied to the aforesaid notice claiming that the sale of business was incidental rather the contract was a rent agreement stricto sensu. Aggrieved by the Respondent 's reply, the appellant herein filed a civil suit being RCS. No. 764 of 1981 before the Court of Joint Civil Judge, Junior Division, Pune. During the course of the trial, one of the important questions that the Trial Court framed, which is relevant for our purpose can be observed hereunder: "Does the Defendant prove that from the year 1963 he is licensee in the said suit premises as contended in para 7 of the plaint? And thereby on the date of suit he became tenant of the suit premises under Section 15A of the Bombay Rent Act?" The Trial Court by Judgment dated 30.08.1988, decreed the Suit in favor of the appellant herein and held that the purport of the Agreement was to create a transaction for sale of business rather than to rent the aforesaid premises to the Respondent herein. The Court while negating the contention of the Respondent, that the shop premises was given to him on license basis held as under: "8. The defendant does not deny the fact that originally the husband of deceased Mangala Karandikar namely Waman Karandikar used to conduct the business of the suit shop. The business of stationary, books and notebooks was being run by him. Same business has been handed over to him. ... The suit shop and the said business came to deceased Mangala Karandikar after the death of her husband. It has come in the evidence 50 that because of death of her husband and after the death of her husband, she was unable to continue the business. In the meantime, the defendant approached to her. Thereupon she agreed to hand over the running business to the defendant. This fact has been denied by the defendant. The defendant raises the contention that the plaintiff never had the shop of stationary, but she had the grocery shop. After the death of her husband, it was lying closed for years together. In the year 1963 the defendant approached the plaintiff and thereupon the plaintiff agreed to give the suit shop. On licence basis to him. This plea of the defendant is negativated by the terms and conditions of the agreement deed itself. The heavy burden was lying on the defendant to prove that there was licence agreement. He has not discharged the same. Therefore, the document became much relevant, and it has got material importance. If the conditions as enumerated in this document Exh.33 are carefully scrutinized, it will become significant that the deceased plaintiff had the sole intention to hand over' the running business of the suit shop to the defendant. There had been no intention to create the leave and licence in respect of the suit premises. The deceased plaintiff had very specifically and by taking at most case and precaution excluded the word premises of shop in the agreement. But all the while the word · "shop" was used with reference to business only. Nextly she has also excluded the word rent to be used. She had specifically made the recital of imposing the royalty on the defendant. The word licence, for the purpose of Bombay Rent Act always refers to premises. The defendant has to seek the benefit under the provisions of Bombay Rent Act. Here the plaintiff had never intended to create the leave and licence in respect of the suit shop. The defendant has relied upon the receipt Exhibit-40. This is the document produced by the plaintiff. It discloses that the word "rent" has been shown in this respect. The defendant is taking benefit of this fact and alleging that the rent was being recovered and not the royalty. Here it is worth to be noted that the plaintiff had at all no intention to recover the rent. All the while, it has been the case of the plaintiff that the royalty was being recovered. Therefore, I am unable to hold that the rent was being recovered by the plaintiff. ... "14. Issue Nos. 5 and 6. - The defendant has alleged that he is the tenant in the suit shop. Initially, the premises were given to him on licence basis but by virtue of amendment to Bombay Rent Act and by virtue of insertion of section 15(A) all the licensees have become the tenants. Learned advocate appearing on behalf of the defendant places his reliance on Case Law reported in A.I.R. 1987 Supreme Court page 117. No doubt there can be no dispute regarding the principles of law. In the instant suit, the defendant has utterly failed to prove that the shop premises were given to him on licence basis. Therefore, no question of his tenancy can arise at any time. ..." (emphasis supplied) ;