JUDGMENT King, J.
1. This is a plaintiff's appeal arising out of a suit for possession of a house. The property in suit belonged to Sheo Dayal who was a cousin of Thakur Prasad. Thakur Prasad, had one son Behari Lal by his first wife and four sons by his second wife. By a private arrangement it was provided that Behari Lal should live with Sheo Dayal and should succeed to his share of the property and that the four sons of Thakur Prasad by his second wife should be the owners of Thakur Prasad's property.
2. In 1892 Sheo Dayal executed a deed of gift in favour of one Bhola Nath. The donor recites that he had brought up Bhola Nath from his childhood and he had been obedient and diligent in service to him and had worked at the shop which was the subject-matter of the deed of gift. The doner goes on to say that as he is very much pleased with Bhola Nath and anxious to provide for his permanent maintenance therefore he makes a gift of the entire stock in trade, account books and outstandings due to the shop specified excepting the pucca shop itself. It is provided that the donee shall remain in proprietary possession from generation to generation of the stock in trade, account books and of the outstandings and that he shall have the right to keep the stock in trade in the said pucca shop and to sell his goods in the shop but he shall under no circumstances have power to sell or make any other kind of transfer of the pucca shop. Para. 3 recites:
That as long as the donee or his sons or heirs continue to carry on the business of the said shop and the sale of goods and merchandise therein till then I and my heirs will allow it to be carried on therein, but whenever the donee or his heirs close the said business and the shop becomes vacant, then I or my heirs will reenter into the possession of the said shop.
3. Bhola Nath entered into the possession of the shop in question in accordance with the deed of gift and Sheo Dayal died in 1893. Sheo Dayal's property passed to Behari Lal, the plaintiff, in accordance with the terms of the family arrangement. The plaintiff has brought this suit against the defendants, who are the heirs of Bhola Nath, on the allegation that the business of the shop has altogether been slopped and that in accordance with the conditions laid down in the deed of gift executed by Sheo Dayal in 1892, the plaintiff is entitled to take possession of the pucca shop. The suit was defended inter alia upon the ground that the business of the shop still continued and that the plaintiff was not entitled to take possession of the shop in such circumstances. The main contention between the parties was whether the business of the shop had stopped or whether it was still continuing. Both the Courts below have concurrently found that the shop was not closed and that the business was still continuing and on that ground the plaintiffs suit was dismissed.
4. In second appeal it has been argued for the plaintiff that because the defendants were mere licensees the plaintiff was entitled to revoke the license and the suit should have been decreed. The plaintiff did not in his plaint take up the position that the defendants were mere licensees and that he was entitled to revoke the license and reenter into possession of the premises whether the business was closed or not closed. His case was that in accordance with the deed of gift the plaintiff was entitled to re-enter upon the premises if the business of the shop were closed and that as the business had, in fact, been stopped therefore he was entitled to re-enter. As the main issue between the parties, whether the business had or had not been closed down, has been decided against the plaintiff . he now adopts the position that he is nevertheless entitled to succeed upon other grounds. The main question raised in this appeal is whether the defendants are mere licensees and whether the plaintiff is entitled to revoke the license notwithstanding the fact that the business of the shop is still being carried on.
5. We have heard the arguments of the learned Counsel on both sides and have come to the conclusion that the deed of gift executed by Sheo Dayal created more than a mere license in favour of Bhola Nath and amounted to the transfer of an interest in the property in suit. In the first place it is clear that the donor did not intend that a purely personal relationship should be created between himself and Bhola Nath which would be terminated by the death of either party. It is expressly stated that so long as the donee or his heirs continue to carry on business so long the donor and his heirs will allow the business to be carried on in the pucca shop. This shows that the donor contemplated the grant of something more than a mere personal permission applicable only to himself and to the donee personally. In the second place it is clear that under the terms of this deed of gift the donee was to have the right of exclusive possession of the pucca shop. This is, in our opinion, the important criterion for determining whether the donee was a mere licensee or whether some interest in the property had been transferred to him.
6. On this point the respondent has relied strongly upon the case of Glewood Lumber Co., Ltd. v. Phillips (1904) AC 405. This was a case decided by their Lordships of the Privy Council. A license had been granted by Government giving an exclusive right of occupation of land though subject to reservations or to a restriction as to its user. It was held that such a license is in law a demise of land. Their Lordships say after a discussion of the terms of the so-called license:
It is not however a question of words but of substance. If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purpose for which it may be used, it is in law a demise of the land itself.
7. In that particular case the license was for the purpose of cutting timber on the land but we do not think that any distinction can be made between the facts of that case and the case which is now before us on the ground that the purpose, for which exclusive possession of the property was given, was a different purpose. In the case before us the donee was given exclusive possession of the pucca shop for the purpose of keeping his stock in trade and for carrying on business therein. In accordance with the ruling of their Lordships we think that the effect of the deed of gift being to give the holder an exclusive right of occupation of the shop, although subject to certain reservations and to a restriction of the. purpose for which it may be used, amounts in law to a demise of the shop itself. It must be noted that the deed of gift was a registered document and no difficulty arises regarding the possibility of a transfer on the ground of non-registration. This decision was followed by the Bombay High Court in Sharif Dadumiyaji v. Emperor A.I.R. 1930, Bom. 165. Their Lordships held that:
The main test for deciding whether a person is a licensee of a property or a lessee is that of exclusive possession. If the effect of the agreement is to give exclusive possession to the holder though subject to certain reservations then it is a lease; if the agreement is merely for the use of the property in a certain way and on certain terms while it remains in the possession and control of the owner, it is a license.
8. In the case before us it is clear that the donee had exclusive possession and control of the shop so long as he carried on business therein. He was made responsible for repairs and he certainly had the right to exclude every one, even the lawful owner. On these facts we think it must be held that the effect of the deed of git was to create more than a mere licence and to transfer an interest in the pucca shop, namely, the right of exclusive possession and enjoyment. In the present case it would not amount to a lease as no rent was reserved but it would amount to a gift for a certain period and subject to certain conditions. In our opinion, therefore the arguments advanced for the appellant on the ground that the defendants were mere licensees have no force as their position is more than that of mere licensees; they are the transferees of an interest in immovable property.
9. The second ground of appeal is that under the award Sheo Dayal had only a life interest in the property and the plaintiff is not bound by any grant or license made by Sheo Dayal. This is a new point which was not raised in either of the Courts below. In our opinion, the appellant was not strictly speaking, entitled to raise a new point like this at the present stage but we did consider the language of the arbitration award and have not been able to find any such language as could be interpreted as restricting Sheo Dayal's right of ownership during his lifetime. It was laid down that after his death Behari Lal was to be the owner and possessor but this does not mean that Sheo Dayal's interest was cut down to a mere life estate. We think there is no force in this ground of appeal. The result is that we dismiss the appeal with costs.