Associated Hotels of India Ltd Vs R N Kapoor AIR 1959 SC 1262

 Hon’ble Supreme Court of India this Court observed the difference between a lease and licence as under"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessorThe 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 if the circumstances negative any intention to create a tenancy....

The following propositions may, therefore, be taken as well-established : (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 may be established which negative the intention to create a lease..."

Quadrat Ullah Vs Municipal Board Bareilly, AIR 1974 SC 396

Hon'ble Supreme Court of India 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 in 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. Marginal variations to this broad statement are possible and Ex. '1' and '4' fall in the grey area of unclear recitals. The law on the point has been stated by this Court in the Associated Hotels' case….
In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties….
The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance….
A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease….”

V. DHANAPAL CHETTIAR v. YESODAI AMMAL AIR 1979 SC 1745

Whether in order to get a decree or order for eviction against a tenant under any State Rent Control Act it is necessary to give a notice under Section 106 of the Transfer of Property Act.
Until and unless the lease is determined, the lessee is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of Section 111, a notice to determine it under Section 106 was necessary. But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given.
Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract.
This was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions on his right to evict the tenant have been put.
No notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of eviction against the tenant-appellant

Tangerine Electronics Systems Pvt. Ltd. v. Indian Chemicals, Mumbai 2004 (1) RCR (Rent) 652 The word "property" has nowhere been defined under the Transfer of Property Act. The Civil Procedure Code also does not define the term "property". The term 'property' possesses a variety of different applications having different degrees and includes, in its widest sense, all a person's legal rights, of whatever description. In its ordinary and general meaning, the property is not only the thing which is subject matter of ownership but also includes dominium or the right of ownership or partial ownership and it indicates and describes every possible interest which a party can have, and will include any benefit that a person is entitled to take out of the property of another. A lease, in the generic sense, is the form of encumbrance which consists in a right to the possession and use of the property owned by some other person. From this definition of word "lease", it is clear that lease creates an interest in the property and unless there is a transfer of such interest, there can be no lease. The creation of an interest in the immovable property is a test to determine whether the transaction is lease. Thus, it is a transfer of right to enjoy the property leased and by way of lease, the lessee gets the tight to remain in occupation of the premises on payment of rent. It cannot be seriously disputed that tenant's right to remain in occupation of the non-residential tenanted premises is a property.31. It would be seen from Section 60 that all saleable property which belongs to the judgment-debtor may be attached and sold in execution of the decree against him subject to Proviso to sub-Section (1). Similarly, the saleable property over which the judgment-debtor has a disposing power which he may exercise for his own benefits may also be attached and sold. Property may not belong to the judgment-debtor and yet he may have a disposing power over it exercisable for his own benefit. In such cases, the property is liable to attachment and sale subject to proviso to sub-Section (1). From what we have discussed above, it is clear that the tenancy right of the non-residential premises is a property and is saleable within the meaning of Section 60 of Civil Procedure Code. There was no bar whatsoever under sub- Section (1) of Section 15 to attach and sell the leasehold interest of a lessee in the premises leased out for non-residential purpose. that the tenant's right to remain in occupation of the non-residential premises governed by the Maharashtra Rent Control Act, 1999 is a property; such property is saleable and the tenant has disposing power over the interest of tenancy for his benefit and in view thereof, we hold that the interest of the tenant of non-residential premises to which the Maharashtra Rent Control Act, 1999 applies is attachable and saleable in execution of the decree against the tenant.

TPA-Sec 106 Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 (SC) 1262 expression `room in a hotel' must take colour from the context or the collocation of words in which it has been used; in other words, its meaning should be determined noscitur a sociis. The reason why I think so may be explained by an illustration. Suppose there is a big room inside a hotel; in a physical sense it is a room in a hotel, but let us suppose that it is let out, to take an extreme example, as a timber godown. Will it still be a room in a hotel, though in a physical sense it is a room of the building which is used as a hotel ? I think it would be doing violence to the context if the expression `room in a hotel' is interpreted in a strictly literal sense. On the view which I take a room in a hotel must fulfil two conditions : (1) it must be part of a hotel in the physical sense and (2) its user must be connected with the general purpose of the hotel of which it is a part. In the case under our consideration the spaces were let out for carrying on the business of a hair dresser. Such a business I consider to be one of the amenities which a modern hotel provides. The circumstance that people not resident in the hotel might also be served by the hair dresser does not alter the position; it is still an amenity for the residents in the hotel to have a hair dressing saloon within the hotel itself. All these amenities are connected with the hotel business and a barber's shop within the hotel premises is no exception. These are my reasons for holding that the rooms in question were rooms in a hotel within the meaning of Section 2(b) of the Rent Control Act, 1947, and the respondent was not entitled to ask for fixation of fair or standard rent for the same. [(Subarao J, in minority)There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas Section 52 of the Indian Easements Act defines a licence thus : "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 immoveable 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 licence." Under the aforesaid section, 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 is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it 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 v. Errington, 1952-1 All ER 149, 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 he considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy." The Court of Appeal again in Cobb v. Lane, 1952-1 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 L.J., stated : ". . . . . . . the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties." Denning L.J. 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 a personal privilege with no interest in the land ?" The following propositions may, therefore, be taken as well-established : (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 may be established which negative the intention to create a lease.]

TPA-Sec 106 Munshi Hossain Baksh v. Khudiram Mukherjee, 1971 RCR (Rent) 493 if after determination of tenancy or its expiry, money is tendered by the tenant as rent, and not as statutory rent in discharge of his obligations, and is accepted as such, a fresh tenancy by holding over is created unless there is prohibition against the exercise of jurisdiction by Court in respect of the lessor's right to obtain possession.