In Triveni Shankar Saxena v. State of U.P., 1992 Supp (1) SCC 524, the Hon’ble Supreme Court held as follows: “The word ‘lien’ originally means binding from the latin ligamen. Its lexical meaning is ‘right to retain’. The word ‘lien’ is now variously described and used under different contexts such as ‘contractual lien’, ‘equitable lien’, ‘specific lien’, ‘general lien’, ‘partners lien’, etc. In Halsbury’s Laws of England, (4th Edition, Vol. 28 at p. 221, para 502) it is stated: “502. Legal Lien.—In its primary or legal sense “lien” means a right at common law in one man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims [of the person in possession] are satisfied.” Similarly in, K. Saradambal v. Jagannath and Brothers, (1972) 42 Comp Cas 359 (Mad), it was held: “A legal lien differs from a mortgage and pledge in being an unassignable personal right which subsists only so long as possession of the goods subsists. A mortgage is an assignable right in the property charged and does not depend on possession. A pawn or pledge gives a special assignable interest in the property to the pawnee . A lien is, however, included in the definition of mortgage in the Law of Property Act, 1925. Where an equitable mortgage is created by deposit of title deeds, the mortgagee has a legal lien on the deeds deposited.’ The word lien is defined in the Law Lexicon by P. Ramanatha Iyer as: “A lien may be defined to be a charge on property for the payment of a debt or duty, and for which it may be sold in discharge of the lien. A lien, in a limited and technical sense, signifies the right by which a person in possession of personal property holds and retains it against the owner in satisfaction of a demand due to the party retaining it; but in its more extensive meaning and common acceptation it is understood and used to denote a legal claim or charge on property, either real or personal, As security for the payment of some debt or obligation; it is not strictly a right in or right to the thing itself but more properly constitutes a charge or security thereon.’ The word ‘lien’ is defined in Stroud’s Judicial Dictionary, 3rd Edition, at p. 1644 as: “A lien.—(without effecting a transference of the property in a thing)-is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general.’ Bombay Stock Exchange v. V.S. Kandalgaonkar, (2015) 2 SCC 1.
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The definition of “Lease” under the Indian Stamp Act, 1899 is a bit wider than what is provided under Transfer of Property Act, 1882. In the sum and substance, it can be said that a license is a right or permission granted by a competent authority or the owner of premises to carry on business or to do an act which, without such license/permission would be illegal. In other words, it is a formal or official permit or permission to carry on some business or to do some act which, without the license, would be unlawful and the word ‘License’ and ‘Permit’ are often used synonymously. The word “Lease” is frequently used to designate the contract by which relationship of landlord and tenant is created. A “Lease” is a species of contract for possession and profits of land and tenements, either for life or for a short period of time or during the pleasure of parties or a contract for the possession and profit of the land for a determinate period with the recompense of rent. A lease may be regarded as a conveyance or grant of an estate or interest in the real property, for limited period with conditions attached. A “License” is distinguishable from a “Lease” in more than one ways. “License” generally provides to the Licensee, less rights in real estate than a “Lease”. If a contract gives exclusive possession of premises against all the world, including the owner, it is a “Lease”, but if it merely confers a privilege to occupy the premises under the owner, it is a “License”. Accordingly, a license in a property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein, and is thus subject to management and control retained by owner. A lease generally conveys an interest in the land, requires a writing to comply with the Statute of frauds and transfers possession, while the license merely excuses acts done by one, on the land in possession of another, that without license, would be trespass and conveys no interest in land. M/s Godwin Construction Pvt. Ltd. V. State of U.P., 2014 (124) RD 298.
In State of Punjab v. Davinder Pal singh Bhullar, (2011) 14 SCC 770, the court explained the doctrine of waiver on the basis of the earlier pronouncements which were taken note of and discussed the same in the following manner:
“In Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425, the Court held that alleged bias of a Judge/Official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party new about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. It was further observed:
Waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party new about the relevant facts and was aware of his right to take the objection in question.”
In Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448, it was held as under:
“Acquiescence is sitting by, when another is invading the rights….It is a course of conduct inconsistent with the claim….It implies positive acts; not merely silenceor inaction such as involved in laches ….The acquiescence must be such as to lead to the inference of a license sufficient to create a new right in the defendant..”
Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held in P. John Chandy & Co. (P) Ltd. V. John P. Thomas, (2002) 5 SCC 90. Thus the court has to examine the facts and circumstances in an individual case.
Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. Vasu P. Shetty v. Hotel Vandana Palace and Others, (2014) 5 SCC 660.
In Sham Lal v. Rajinder Kumar, (1994) 30 DRJ 596, on the question of possession, the Court in Para 13, held as below:
“Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of the law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider:
(1) The person possessing,
(2) The things possessed and,
(3) The persons excluded from possession.
A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and a master.”
The ratio of this judgment is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property.
Principles of law which emerge in this case are crystallized as under:
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquire no right or interest whatsoever for himself in such property irrespective of his long stay or possession. Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through Lrs. (2012) 5 SCC 370.