Whether agricultural tenancy is heritable on death of tenant in case of lands belonging to trust or educational institution?

 There is an another angle.   During the pendency of
appeal the original appellant has expired.   The legal heirs are

brought on record.  In view of the clear pronouncement of law by
the Apex Court in the case of Shriram Mandir Sansthan (cited
supra) in case of the lands belonging to a trust or an educational
institution falling within Section 129(b) of the Bombay Tenancy
Act, the tenancy is not heritable on the death of the tenant.  We
have made reference to this fact since the said subsequent event
has taken place during the pendency of present appeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.39 OF 2005.
IN
WRIT PETITION NO.516 of 1992 (D).
Digamber s/o Pandhari Bhise,

             V
   Shri Gajanan Maharaj Sansthan,
  CORAM:     B.R.GAVAI AND
          P.N.DESHMUKH, JJ.
          DATE :     23rd NOVEMBER, 2015.
Citation:2016(5) MHLJ163

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Whether licence given to a person can be heritable or transferable?

 It is further submitted that as the father of the petitioner was a licencee and was temporarily permitted to use the Railway land measuring Ac.1.38 dec. only for agricultural purpose under "Grow More Food" scheme and as the licence has come to an end since 1992-93, the occupation of the land by the petitioner is unauthorized and illegal. Moreover, as the temporary licence had been granted in favour of the father of the petitioner on year to year basis upto the year 1992-93 and the same being neither heritable nor transferable, the present petitioner is a rank trespasser and his occupation of Railway land is wholly unauthorised and unlawful.

 The word 'licence' is defined under Section 52 of the Indian Easements Act, which reads as under:

"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 immovable 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."

The aforesaid definition of the word 'licence' makes it clear that no interest in the immovable property is created by grant of licence. It is only a permissive occupation given to the licencee to use the immovable property for a particular purpose. A licence being matter purely personal between the grantor and the grantee, the same is neither heritable nor transferable.

It is well settled in law that the licence is a personal right granted to a person to do something upon the immovable property of the grantor and does not amount to the creation of an interest in the property itself. It is purely a permissive right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is therefore revocable except in certain circumstances expressly provided in the Act itself. The licence has no other effect than to confer a liberty upon the licencee to go upon the land which would otherwise be unlawful.

Orissa High Court

Balaram Barik vs Unknown on 26 September, 2014

THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE S.C. PARIJA

Citation;AIR 2015(NOC)522 orissa

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