Civil Appeal No 491 of 1975
Appeal by Special Leave from the Judgment and order dated the 24th June 1974 of the Orissa High Court in Second Appeal No 8 of 471 Gobind Das and B Parthasarthi for the Appellant
Santosh Chatterjee and GS Chatterjee for the Respondent
The Judgment of the Court was delivered by JASWANT SINGH J
This appeal by special leave which is directed against the judgment and decree dated June 24 1974 of the High Court of Orissa at Cuttack reversing the judgment and decree dated September 23 1970 of the first appellate court which in turn reversed the judgement and decree dated April 10 1970 of the Trial Court relates to the controversy regarding the appellants right to store and sell dry Mahaprasad  in the suit premises consisting of two pucca rooms standing on plot No 167 in Bihar Bedha  outer compound of the Hoary Holy public temple of Lord Jagannath Ji in Puri here in after referred to as the Temple  which to use the language of the illuminating and instructive preamble of Shri Jagannath Temple Act 1954 Orissa Act No 11 of 1955 hereinafter referred to as the Act  has ever since its inception been an institution of unique national importance in which millions of Hindu devotees from regions far and 103 wide have reposed their faith and belief and have regarded it as the epitome of their tradition and culture
The facts giving rise to this appeal are on August 7 1969 one Gopal Suar since deceased who was the father and predecessor in interest of the present appellants describing himself as sevak of the temple brought a Suit in the Court of the Munsiff Puri being suit No 160 of 1969 for permanent injunction restraining the respondents herein from interfering with his right of storing and selling dry Mahaprasad  in the suit premises
The case of the original plaintiff was that by means of Sanand  Exhibit I Raja Sri Dibyasingha Deb the then Superintendent of the Temple granted to his great grandfather Gangadhar Suar a permanent lease of the site on which the two suit rooms stood on an annual rent of Rs 7 that it was provided in the Sanad  that the grantee or lessee would be entitled to enjoy the site from generation to generation and in case a permanent structure was constructed thereon the rent would be enhanced to Rs 14 per year that as a result of the death of his great grandfather Gangadhar Suar of his grandfather Bela Suar and of his father Chakhi Suar he had become the sole owner of the property that a few days after the commencement of the lease two permanent pucca rooms for storing and selling Mahaprasad  where constructed by his great grandfather Gangadhar Suar who according to the stipulation contained in the aforesaid Sanad  became liable to pay an annual rent of Rs 14 that since the commencement of the lease his ancestors had from generation to generation been using the suit property as a store room and as a shop for selling dry Mahaprasad  in their capacity as tenants of the Raja of Puri who was the Superintendent of the Temple and the said right of his had been acknowledged and duly recorded in the record of rights
that ever since the taking over of the management of the Temple by tile Government he had been paying annual rent as per terms of the lease to the respondent who had accepted him as a tenant that he had been occupying and enjoying the suit property as before without any let or hinderence either by the respondents or by their predecessor in interest that on August 1 1969 his son intimated to him that respondent No 2 had by means of notice dated July 31 1969 called upon him to close the shop on pain of daily fine of Rs 100  as in the opinion of the respondent he had been using the land in inner bedha of the Temple for storage and sale of Mahaprasad  which adversely affected the discipline and dignity of the Temple that on being so informed he personally approached respondent No 2 and represented to him that he was the permanent lessee of the suit property and had acquired indefeasible right of storing and selling Mahaprasad  thereon and the respondents could not interfere with that right but his representation fell flat and respondent No 2 threatened to close his shop forcibly to impose penalty on him and to dismiss him from the seva  that after sometime respondent No 2 served him within another notice imposing on accumulated penalty of Rs 4600 at the rate of Rs 100 per diem and that there being no provision in the Act empowering the respondents to do any of the aforesaid things there action was arbitrary illegal and without jurisdiction
104 The suit was vigorously contested by the respondent
While denying The grant of the open site to the plaintiff s ancestor
Gangadhar Suar
 as alleged as also the construction of two pucca rooms by the latter and the storage and sale thereon of Mahaprasad  by the plaintiffs  ancestors the respondents averred inter alia that the Raja of Puri being merely a Superintendent or a Manager of the Temple it was beyond his competence to transfer a portion of the Temple permanently in favour of any individual and the Sanand  set up by the plaintiff was as such ineffectual invalid and inoperative and did not confer any right  title or interest on him or his ancestors and was not binding on the Respondents that according to the established custom and usage of
the Temple Mahaprasad  could not be stored and sold in a saraghara  but was to be sold in Anand Bazar the place specifically set apart for the purpose and that since the plaintiff had been committing a breach of discipline and violating the orders of the respondents be storing and selling Mahaprasad  in the Saraghara  standing on plot No 167 which had been recorded in the record of rights as khas dakhali  land of the respondents and was never intended for storage and sale of Mahaprasad  and was thus acting in a manner derogatory to the dignity of the Temple the respondents in whom the governance and administration of the Temple and its endowments vested under section 5 of the Act were competent to take action under sections 21 A and 30A of the Act
After framing the necessary issues and recording the evidence adduced by the parties the Trial Court dismissed the suit holding that as sections 15 and 30A of the Act cast statutory obligation on the respondents to ensure maintenance of order and discipline and proper hygienic conditions in the Temple and proper standard of cleanliness and purity of the offerings made therein they could not be restrained by a permanent injunction from stopping the plaintiff to sell Mahaprasad  at a place other than the one specified for the purpose
On appeal however the Sub Judge Additional District Magistrate Puri decreed the suit
Aggrieved by this decision the respondents preferred an appeal to the High Court which accepted the same and dismissed the suit Counsel for the appellants has urged before us suit the suit property did not form part of the Temple that the transaction evidenced by Sanands  Exhibits I  II issued by the Raja of Puri as Superintendent of the Temple in exercise of his right of superintendent and management of the Temple amounted to a permanent lease of the suit property and not merely to a licence and that the appellants had an indefeasible right of storing and selling Mahaprasad in the suit Saraonara
We shall deal with these contention seriatim Regarding the first contention raised on behalf of the appellants we may observe that according to section 2d of Act No XIV of 1952 called the Puri Shri Jagannath Temple Administration Act 1952 Temple  means the Temple of Lord Jagannath of Puri other temples within its premises all their appurtenant and subordinate shrines other sacred places and tanks and any additions which may be made thereto after the commencement of the Act
It may also he 105 mentioned that pursuant to section 3 of that Act a Special officer with prescribed qualifications was appointed by the State Government for preparation of the consolidated record of rights and duties of different sevaks and pujaries and other persons connected with the seva puja or management of the Temple as also for preparation of a list of List immovable properties endowed to L ord Jagannath Temple and the extent of the premises of the Temple and what it comprises
In the report prepared by the said officer which was published in the Orissa Gazette Extraordinary and is final and entries whereof cannot be questioned except in the manner provided in section 5 of that Act it is recorded that the Temple of Lord Jagannath occupies an area of 10 acres and its premises include all appurtenance and subordinate shrines and the outer and inner compounds and that the suit plot No 167 lies in the Baisi Pahacha  area in between the inner and outer compounds of the Temple and that access to it is though the main gate li e Singhadawara  lion s gate of the Temple
It is therefore clear beyond any manner of doubt that the Suit premises form part of the Temple
The first contention of counsel for the appellants is therefore repelled
For a proper appreciation of the second contention it is necessary to bear in mind the essential difference between a lease and a licence
It is now well settled by a catena of decisions of this Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence
Reference in this connection may be made with advantage to the decision of this Court in Associated Hotels of India Ltd vs R N Kapoor1 where Subba Rao J with whom Das J agreed observed as follows If a document gives only a right to use the property in a Particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence
The legal possession therefore continues to be With the owner of the property but the licensee in permitted to make use of the premises for a particular purpose
But for the permission his occupation would he unlawful
It does not create in his favour any estate or interest in the property
There is therefore clear distinction between the two con concepts
The dividing line is clear though sometimes it be becomes very thin or even blurred
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises it would conclusively establish that he was a lessee
But there was a change and the recent trend of judicial opinion is reflected in Errington vs Errington  wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p 155 The result of all these cases is that although a person who is let into exclusive possession is prima facie to be considered to be tenant nevertheless he will not be held to be so 1 AIR1959SC1262 106 if the circumstances negative any intention to create a tenancy
The Court of Appeal again in Cobb vs Lane 1952 I All ER 1199 considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document
At p 1201 Somervell LJ stated  the solution that would seem to have been found is has one would expect that it must depend on the intention of the parties
Denning LJ said much to the same effect at p 1202 The question in all these cases is one of intention did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have personal privilege with no interest in the land  The following propositions may therefore be taken as will established 1 To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the forms 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 all 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 perima facie  he is considered to be a tenant
but circumstances may be established which negative the intention to create a lease
Again in Quadrat Ullah vs Municipal Board Bareiliy1 this Court observed There is no simple litmus test to distinguish a lease as defined in section 105 Transfer of Property Act from a licence as defined in section 52 Easements Act but the character of the transaction turns on the operative intent of the parties
To put it pithily if an interest is immovable property entitling the transferees to enjoyment is created it is a lease if permission to use land without right to exclusive possession is alone granted a licence is the legal result
 Then again in Board of revenue vs A MAnsari2this very Bench while approving the observations made by Lord Shaw while delivering the judgement of the Board in Kauri T Timber Company Limited vs The Commissioner of Taxes3 held that in order that a 1  2  3 1913 A C 771 776
107 agreement can be said to partake of the character of lease it is necessary that the grantee should have obtained an interest m and possession of land
The following observations made therein are apposite A licence does not create an interest ill the property to which it relates while a lease does
There is in other words transfer of a right to enjoy the property in case of a lease
As to whether d particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case
For the purpose of deciding whether a particular grant amounts to a lease or a licence it is essential therefore to look to the substance and essence of the agreement and not lo its from
 Bearing in mind the above observations let us now scrutinize the terms of Sanand Exhibit I which reads thus Order hereby is issued to the Parichhas Karjees Officers of the temple as follows one Gangadhara Suar of Kundhaibenta Sahi has filed an application before the Raja for opening a Sera Ghara  store Room of Mahaprasad at the top step of twenty two steps adjoining the inner compound of the temple and the Eastern Gate Way having space of 10 cubits of length to wards south and width of 10 cubits
It is ordered that he is permitted to open the said store room with hereditary right on payment of one gold Mohara as Salami and rupees seven as annual rent
If he at any time constructs a pucca house he shall pay rupees fourteen as annual rent
 A careful 
persual of the recitals in the Sanand which does not reveal the identity of the plot with precision would show that the Sanand did not create any interest in the size in question in favour of the plaintiff s great grandfather
It merely permitted him to open a Saraghara which meant a room for storing articles for the sole purpose of preparing Bhog for the three presiding deities
The Sanand did not also confer the right of exclusive possession of the suit property on the grantee
This is evident from the right of dakhale khas  of the respondents in the suit property as also from the proved fact that Saraghara  was not kept open by the Temple authorities from midnight to 600 AM during which interval the plaintiff could in no case occupy it nor could he have access to it
lt has also been found to have been established from the plaintiff s evidence itself that the employees of the Raja of Puri used to clean the refuse etc
which got accumulated before the suit Saraghara 
Thus none of the elements of lease can be said to be present in the instant case
In M N Chubwala vs Eide Hussain Sahib1 this Court rejected the claim of holders of certain stalls in a market that they were lessees and not 1 A I R 108 licences there of the ground that they had no right to us them after the closure of the market at night and the responsibility of cleaning and disinfecting the stalls and closing the market at night lay on the landlord and not on the stall holders
No help can be derived by the appellants from Exhibit II which relates to a quarrel in Kotha Bhog Nities  and is not relevant for the purpose with which we are concerned at the present stage
Now assuming without holding that the Sanand amounted to a lease it cannot even then be held to be valid as permanent alienation of the temple debutter property is prohibited
The position is stated thus at page 489 of Mulla s Treatise on Principles of Hindu law 11th Edition The power of a shebait or a mohunt to alienate debenture property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Pershad vs Mussamat Babooee As held in that case he has no power to alienate debutter property expect in a case of need or for the benefit of the estate
He is not entitled to sell the property for the purpose of investing  the price of it so as to bring in an income larger than that derived from the property itself
Nor can he except for legal necessity grant a permanent lease of debutter property  though he may create proper derivative tenures and estates conformable to usage
 In the present case the position of the Raja of Puri who granted the Sanand exhibit was merely that of a shebait
He could not have granted a permanent lease of the property in question to the great grandfather of the plaintiff without necessity or without benefit to the estat e which have not at all been made out hl this case Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri
Reference in this connection may usefully be made to page 931 of Maynes Treatise on Hindu Law 11th Edition where the position is stated as follows It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity  for to fix the rent though adequate at the time in perpetuity
in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to lime would be a breach of duty on the part of the manager
In Palaniappa Chetty vs Streemath Deivasikamony 1917  44 IA 147
Lord Atkinson observed Three authorities have been cited which establish that it is a breach of duty on the part or a shebait unless constrained thereto by unavoidable necessity to grant a lease in perpetuity of debutter lands at a fixed rent
however adequate that rent may be at the time of granting reason of the fact that by this means the debutter estate 1 44 I A 147 109 Is deprived of the chance it would have if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased
 In Palaniappa Chetty  Anr
vs Deivasikamony Pandara1 alluded to in the above quoted passage it was also held A permanent lease of temple lands at a fixed rent or rent free for a premium whether the lands are agricultural lands or a building site is valid only if made for a necessity of the institution
It is not justified by a local custom or by a practice of the institution to grant lands in that manner
The phrase benefit of the estate as used in the decisions with regard to the circumstances justifying an alienation by the manager for an infant heir or by the trustee of a religious endowment cannot be precisely defined but includes the preservation of the estate from extinction its defence against hostile litigation its protection from inundation and similar circumstances
 The present case is in our opinion fully covered by the decision in Shibessouree Debia vs Mothooranath Acharjo2 where it was laid down a general rule that apart from unavoidable necessity to create a new and fixed rent for all time though adequate at the time in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach duty in the mohunt
Thus viewed from any angle the Sanand  could not be held to be any more than a licence and could not clothe the ancestors of the plaintiff or the plaintiff with the status of a lessee
This takes us to the last contention raised before us by counsel for the appellants which is also devoid of substance
A bare perusal of Exhibit I is enough to show that it does not confer any right of selling Mahaprasad  on the plaintiff or on his legal representatives
Exhibit II cannot also be usefully pressed into service by the appellants as it relates to the sale of Rahani Bhog  and not of dry Mahaprasad 
Thus all the contentions raised by counsel for the appellants fail
For the foregoing reasons we affirm the judgment of the High Court and dismiss the appeal with costs
The appellants are however as mutually agreed to between the parties given one month s time to vacate the premises
The cumulative penalty of Rs 4600 to which the appellants have been subjected also being excessive is reduced to Rs 500 P P Appeal dismissed
1 441
A 147 2 13 M 1
A 270


Summary:
The appellant s great grandfather was granted a Sanad in respect of 2 rooms in the Jagannath temple by the Superintendent of temple at the annual rent of Rs 7 
The Sanad provided that the grantee would be entitled to enjoy the said 2 rooms from generation to generation and in case a permanent structure was constructed thereon the rent would be enhanced to Rs 14 per year
After the death of great grand father of the appellant the grand father and thereafter the father of the appellant continued storing and selling dry Mahaprasad  in the said property and continued to pay Rs 14 per year
The respondents who have the management of Jagannath temple at present under the Puri Jagannath Temple Administration Act 1952 called upon the appellants  father to close and to hand over the possession of the two rooms to the management on the ground that the storage and sale of Mahaprasad in the Bihar Bedha of the temple affected adversely the discipline and dignity of the temple
The appellant s father was threatened with imposition of a penalty of Rs 100 per day in case he did not vacate the premises in question
The appellant s father therefore tiled the suit in the civil court which after his death has been continued by the present appellant for permanent injunction restraining the respondents from interfering with his right of storing and selling dry Mahaprasad in the suit premises
According to the plaintiff the permanent lease was granted to him by the Raja Dibyasingha and that since he was continuing to pay the rent regularly he was entitled to continue in the suit premises from generation to generation
The respondents contested the suit on the ground that it was beyond the competence of Raja of Puri as Manager of the temple to grant a permanent lease and that therefore the Sanad was ineffectual invalid and inoperative and conferred no rights on the appellant and his ancestors which would bind the present respondents
Secondly since the act of storing and selling Mahaprasad at the suit premises constitute a breach of order and discipline the respondents under the above statute had right to ask the appellant to vacate
Thirdly what was granted by the Sanad was licence and not a lease
The trial court dismissed the suit
However an appeal was allowed
The High Court accepted the second appeal and dismissed the suit
In an appeal by special leave it was contended by the appellants  1 The suit property did not form part of the temple
2 The Sanad granted a permanent lease of the suit property and not merely a licence and therefore the appellant had an indefeasible right of storing and selling Mahaprasad
Dismissing the appeal  HELD 1 Section 2d of the Puri Sri Jagannath Temple Administration Act 1952 defines temple as including the temple of Lord Jagannath of Puri
Other temples within its premises and all other appurtenant and subordinate shrines other sacred places and tanks and any additions which may be 102 made there after commencement of the Act
Records of right prepared under said Act also include the suit premises within the meaning of temple
104 H 2 It is now well settled by a catena of decisions of the Supreme Court that it is the creation of an interest in immovable property that distinguishes a lease from a licence
The intention of the parties is the real test for ascertaining the character of a document
At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises it would conclusively establish that he was a lessee
However the result of the subsequent cases is that although a person who is let into exclusive possession in prima facie to be considered to be a tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy
To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form entire English and Indian case Law reviewed
105 D H 106 A D 3 A careful perusal of the recital in the Sanad which does not revival the identity of the plot with precision would show that the Sanad did not create any interest in the rooms in question in favour of the grantee
l he Sanad also did not confer the right of exclusive possession of the premises
It is also evident from the right of Dakhale Khas of the respondents in the suit property as also from the proved facts that the Sarghara was not kept open by the temple authorities from mid night to 6 am during which interval the plaintiff could in no case occupy it nor could he have access to it
It proved that the employees of the Raja of Puri used to clean the refuse etc which got accumulated in the suit premises
The Sanad therefore created a licence and not a lease
107 E H 4 Even if it is assumed that the Sanad created a lease it could not be valid lease since the Mohant or manager of a Hindu temple is prohibited from grantee a permanent lease except far legal necessity or benefit of the estate
Tn the present case no such legal necessity or benefit of estate has been proved
108 B E