- (1.) The short question which arises for consideration in this appeal is whether the following transactions covered by Exhibits P-4, 3,2,8,7,6 and 5 dated 1/5/1969, 9/9/1974, 1/11/1975, 1/1/1976, 1/4/1977, 22/3/1978 and 16/4/197979 respectively amount to licence or lease. We may refer to Associatedhotels of India Ltd. v. R. N. Kapoor wherein the distinction between lease and licence has been set out. The following tests are applied to distinguish between the two- (1 To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2 The real test is the intention of the parties whether they intended to create a lease or a licence; (3 If the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4 If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances which negative the intention to create a lease. "
(2.) The same principle has been adopted in Capt. B. V. D'souza v. Antonio fausto Fernandes. On these tests, we will try to find out whether these transactions would amount to lease or licence: (1 Nomenclature is not conclusive though it may be one of the guiding factors. (2 The intention of the parties will have to be ascertained notwithstanding the various terms of the deed. However, that does not mean that the terms of the deed are to be ignored altogether. In this particular case, we want to focus attention on clause (10 of the deed which reads as under: "the licensee shall not have any right or interest in the shop No. 2 except as licensee in accordance with the terms and conditions of this agreement. The possession of the shop shall vest with the licensor and the licensor shall have the right to enter at any time to inspect the same. "
(3.) We may also add that similar clause occurs in each of the documents referred to above. Therefore, as per this clause the licensee does not have any interest in the immovable property which is a distinctive badge of a lease. That has to be given due weight and credit.;