CARETAKER AND PERMISSIVE OCCUPATION AGREEMENT
(RAKHWALI NAMA)
A bare licence under section 52 of the Indian Easements Act, 1882.
This is NOT a lease, NOT a tenancy, NOT an agreement to sell and NOT a power of attorney. No interest in immovable property passes under it.
THIS AGREEMENT is made at __________ on __________
BETWEEN
AND
The Owner and the Caretaker are together called "the Parties".
RECITALS
D. The Owner desires to place the Property under the care and watch of a person of trust for its safe custody and upkeep, and the Caretaker has agreed to render such care and watch upon the terms recorded below.
F. The Parties record that they have read and understood clause 1 below, and that neither of them intends this Agreement to operate as a lease, a tenancy or a transfer of any interest in immovable property.
NOW THIS AGREEMENT WITNESSES AND IT IS AGREED as follows:
- 1. NATURE OF THIS AGREEMENT: LICENCE, NOT LEASE
1.1 The Owner hereby grants to the Caretaker a bare, personal, non-exclusive and revocable licence, being a licence within the meaning of section 52 of the Indian Easements Act, 1882, to enter upon the Property and to do upon it the acts described in this Agreement, and for no other purpose whatsoever.
1.2 This Agreement does not create, and is not intended by either Party to create, any lease, tenancy, sub-tenancy, right of occupancy, easement, mortgage, charge, lien, trust, partnership, joint venture, agreement to sell, or any right, title or interest of any nature in or over the Property. No interest in immovable property passes under this Agreement.
1.3 Legal possession of the Property remains with the Owner at all times and throughout the Term. The presence of the Caretaker upon the Property is the possession of the Owner, exercised through the Caretaker as the Owner's licensee and custodian, and is not and shall never be possession by the Caretaker in his own right.
1.4 The Caretaker is not granted exclusive possession of the Property or of any part of it. The Owner, and any person authorised in writing by the Owner, may enter upon and inspect the whole of the Property at any time and without prior notice, and the Caretaker shall afford such entry and inspection immediately on demand.
1.5 No rent, premium, salami, pagri, security deposit, advance or other consideration of any kind whatsoever is reserved to or payable to the Owner by the Caretaker under this Agreement or under any collateral understanding, and none shall be accepted by the Owner or tendered by the Caretaker at any time. Any sum tendered by the Caretaker to the Owner or to the Owner's attorney, by whatever name described, shall not be received and shall in no event be treated as rent.
1.6 If, notwithstanding the express intention of the Parties recorded above, any authority or court were to hold this Agreement to be a lease, the Parties record that the Term granted is less than one year, that no yearly rent is reserved, and that the arrangement is accordingly not one falling within section 17(1)(d) of the Registration Act, 1908.
- 2. TERM AND RENEWAL
2.2 The Term has been deliberately fixed at less than one year. The Parties do not intend, and shall not be taken to have intended, a licence or tenancy from year to year or for any term exceeding one year, and nothing in this Agreement shall be read as reserving a yearly rent.
2.3 There is no automatic renewal, no deemed continuation and no holding over. The licence may be renewed only by a fresh writing signed by both Parties in the form set out in PART B of the SECOND SCHEDULE, which must state a fresh commencement date and a fresh expiry date not more than eleven months apart, or by a fresh agreement in these terms. The acknowledgment in PART A of the SECOND SCHEDULE is signed by the Caretaker alone and renews nothing.
2.4 The Caretaker acknowledges that if he remains upon the Property after the expiry of the Term without a fresh writing signed by the Owner, his presence from the day following expiry is unauthorised, is a trespass, and confers no right of any kind upon him.
- 3. EXTENT OF THE PERMISSION
3.3 The Caretaker shall not sublet, assign, transfer, mortgage, charge, part with or share possession of the Property or of any part of it, and shall not admit or permit to remain upon the Property any tenant, sub-tenant, licensee, lodger, paying guest, workman in residence, or any other person whatsoever, whether for payment or gratuitously.
3.4 The Caretaker shall use the permission granted only for the care and watch of the Property. He shall not carry on any trade, business, manufacture, storage, workshop, dairy, cattle-shed, godown, shop, hostel or commercial activity of any nature upon the Property, and shall not use it for any unlawful or immoral purpose.
- 4. DUTIES OF THE CARETAKER
The Caretaker shall, during the Term and at his own risk as to his personal effects:
(a) keep the Property securely locked and closed at all times when nobody authorised is inside it, and keep the boundary wall, gate, fencing, doors, windows and locks intact and in working condition;
(b) keep the Property clean, free of rubbish and stagnant water and, save so far as clause 4A permits cultivation, free of overgrowth, and take reasonable care to prevent damage by rain, seepage, termites, rodents, stray cattle and fire;
(c) prevent, resist and immediately report any encroachment, trespass, unauthorised entry, unauthorised construction, cutting of trees, removal of soil or dumping of material upon the Property, and inform the Owner of any such event by telephone and in writing within forty-eight hours of its coming to his notice;
(d) hold the keys listed in the THIRD SCHEDULE as the Owner's bailee, produce them on demand, and never hand them to any third person without the Owner's prior written instruction;
(e) permit the Owner and any person authorised in writing by the Owner to enter and inspect the Property at any time without notice, and afford access to any surveyor, valuer, patwari, official or intending purchaser sent by the Owner;
(f) receive, preserve and forward to the Owner within seven days every notice, summons, demand, bill or communication of any kind delivered at the Property or affixed upon it, and inform the Owner by telephone on the same day if any such document appears to concern title, tax, encroachment or legal proceedings;
(g) not incur any expenditure on the Property, and not engage any workman, contractor or agency in respect of it, without the Owner's prior written approval, save only such immediate expenditure as is necessary to prevent imminent damage, which shall be reported to the Owner within twenty-four hours of being incurred;
(h) keep no account, and make no claim, for any sum spent without prior written approval except as permitted by sub-clause (g) above;
(i) attend upon the Property, and send the Owner dated photographs of it, at the intervals set out in sub-clause (l) below;
(j) sign and deliver to the Owner the acknowledgment in PART A of the SECOND SCHEDULE as required by clause 7.3;
(k) deliver up the Property to the Owner or to the Owner's attorney immediately on revocation or expiry, in the same condition in which it was received, reasonable wear and tear excepted; and
4A. CULTIVATION AND LAND
4A.2 Nothing in clause 4A.1 shall be construed as creating a lease, a theka, a batai arrangement, a tenancy at will, or any right of occupancy tenancy, and no entry shall be sought or made in the khasra girdawari or in any other revenue record recording the Caretaker as a tenant, lessee, gair marusi, or cultivator in his own right.
- 5. WHAT THE CARETAKER MUST NOT DO
5.1 No permanent work. The Caretaker shall not raise, and shall not permit any person to raise, any construction, addition, alteration, extension, pucca structure, room, shed, boundary, tubewell, boring, well, plinth or permanent improvement of any nature upon the Property, and shall not fell any tree upon it. The Owner does not consent, and shall not be taken to have consented, to the execution of any work of a permanent character upon the Property. The Caretaker acknowledges that the licence granted is revocable, that nothing done by him in breach of this clause shall render it irrevocable under section 60 of the Indian Easements Act, 1882, and that he shall have no claim to compensation for any such work.
5.2 No entry in any record. The Caretaker shall not apply for, procure, or permit to be made, any entry of his name or the name of any member of his family in respect of the Property in the jamabandi, khasra girdawari, mutation register, roznamcha, any municipal or property tax record, any electricity, water, sewerage, gas or telephone record, any ration card, any voter roll, any Aadhaar record, or any other public or private record whatsoever. He shall not apply for mutation of the Property in any name.
5.3 No holding out. The Caretaker shall not hold himself out to any person as the owner, co-owner, tenant, lessee, mortgagee, attorney, agent or manager of the Property, and shall not represent that he has any authority to deal with it.
5.4 No dealing with the Property. The Caretaker shall not execute, obtain, accept or attest any agreement to sell, sale deed, general or special power of attorney, will, gift deed, affidavit, receipt, memorandum of understanding or other document of any nature relating to the Property, and shall not receive any earnest money, advance, token amount or consideration from any person in respect of it.
5.5 No security. The Caretaker shall not raise or attempt to raise any loan, credit or advance upon the security of the Property, and shall not create any encumbrance, lien or charge upon it.
5.6 No claim under section 53A. The Caretaker declares that he holds no contract for the transfer of the Property, has paid nothing towards any consideration for it, and is not in part performance of any such contract, and that he shall make no claim to the protection of section 53A of the Transfer of Property Act, 1882 in respect of the Property.
- 6. NO RENT FROM THE CARETAKER, AND THE POSITION AS TO WAGES
6.1 The Caretaker pays and shall pay nothing whatsoever to the Owner for the permission granted by this Agreement, and holds no interest in the Property capable of being paid for.
6.3 No payment whatsoever made by the Caretaker to the Owner, to the Owner's attorney or to any person on the Owner's behalf shall at any time or for any purpose be treated as rent or as consideration for occupation.
- 7. ACKNOWLEDGMENT OF THE OWNER'S TITLE AND OF PERMISSIVE POSSESSION
7.1 The Caretaker acknowledges and admits that the Owner is the absolute owner of the Property, that the Caretaker has no right, title, interest, share, claim or demand of any nature in or over the Property or any part of it, and that he has been let upon the Property solely as the Owner's licensee and custodian.
7.2 The Caretaker acknowledges that his presence upon the Property is permissive throughout, that it has at no time been and shall at no time become adverse to the Owner, and that legal possession has at no time passed out of the Owner. The Caretaker shall never set up adverse possession, prescription, part performance, an oral gift, an oral sale, a family settlement or any like plea in respect of the Property, and the Parties record their intention that no period of the Caretaker's presence shall count towards the twelve years contemplated by Article 65 of the Limitation Act, 1963 or operate to extinguish the Owner's right under section 27 of that Act.
7.5 The Caretaker further declares that he holds no agreement to sell, no receipt for earnest money, no power of attorney and no will from the Owner in respect of the Property, and that he is aware that in Suraj Lamp & Industries (P) Ltd. v. State of Haryana, decided by the Supreme Court of India on 11 October 2011, it was held that transactions by way of general power of attorney, agreement to sell or will convey no title, and that immovable property is transferred only by a registered deed of conveyance.
- 8. REVOCATION, VACATION AND HANDOVER
8.2 The Owner may revoke the licence forthwith, without any notice, if the Caretaker does any of the following: commits a breach of clause 3, clause 5 or clause 7; asserts any claim hostile to the Owner's title; applies for or procures any entry or mutation in any record in respect of the Property; admits any other person into the Property; raises any construction upon it; causes or permits any encroachment; is charged with any offence involving dishonesty, force or trespass; or abandons the Property or ceases to attend upon it for a continuous period of thirty days without the Owner's written consent.
8.3 On revocation or on expiry of the Term the Caretaker shall vacate the Property, remove himself, his family and all his goods and effects from it, and deliver vacant custody of it together with all keys, documents and movables listed in the THIRD SCHEDULE to the Owner or to any person authorised in writing by the Owner.
8.4 The period allowed to the Caretaker to leave and to remove his goods, being the reasonable time contemplated by section 63 of the Indian Easements Act, 1882, is as follows, and the Caretaker agrees that each period is reasonable in the circumstances to which it applies:
(b) where the licence is revoked under clause 8.2 for a breach or for conduct there described, three days from the date on which the revocation is communicated to the Caretaker, the Parties having regard to the fact that every ground stated in clause 8.2 is one on which the Caretaker's continued presence upon the Property is itself a source of loss to the Owner.
8.5 Anything left upon the Property after the applicable period may be removed and stored by the Owner at the Caretaker's cost, and the Owner shall not be liable for it.
8.6 The Caretaker admits that he is a licensee and not a tenant, that no rent legislation for the time being in force in Punjab applies to his presence upon the Property, that he is entitled to no protection as a tenant thereunder, and that on revocation or expiry the Owner is entitled to recover possession and to claim damages for use and occupation for every day of unauthorised presence, together with the costs of recovering possession.
8.7 The Caretaker shall not, on revocation or expiry, obstruct or resist the Owner's re-entry, and shall not remove any fixture, fitting, door, window, electrical installation, pump, motor or building material from the Property.
- 9. THE OWNER'S ATTORNEY AND SUPERVISION
9.2 The Caretaker shall report to the Owner directly as well as to any such authorised person, and shall not treat instructions from any other member of the Owner's family, however closely related, as instructions of the Owner unless confirmed by the Owner in writing.
- 10. CARE, LOSS AND INDEMNITY
10.1 The Caretaker holds the keys and the movables listed in the THIRD SCHEDULE as a bailee, and shall be answerable for their loss or damage occasioned by his negligence or by that of any person permitted by him to be upon the Property.
10.2 The Caretaker shall keep the Owner indemnified against all loss, damage, cost and liability arising from any act, default, neglect or breach on his part or on the part of any person permitted by him to be upon the Property, including any encroachment permitted, any entry procured in any record, and any claim made by any person let in by him.
10.3 The Caretaker occupies and attends upon the Property at his own risk. The Owner is under no obligation to insure the Caretaker or his goods, and shall not be liable for any injury, loss or damage suffered by the Caretaker or by any person permitted by him to be upon the Property.
- 11. RECORDS, INTIMATION AND VERIFICATION
11.1 The Owner may register this Agreement, may lodge a copy of it with the Halqa Patwari of the revenue estate with a request that a rapat be entered in the roznamcha waqiati recording that the Caretaker is upon the Property by permission, and may lodge a copy with the local police. Where the Property carries no revenue entry, the Owner may instead lodge a copy with the municipal office or with the allotting authority. The Caretaker shall sign any application, form or acknowledgment reasonably required for those purposes and shall attend before any officer if required.
11.3 The Owner shall be entitled, and the Caretaker shall render every assistance, to obtain in the course of every Term a fresh copy of the jamabandi and khasra girdawari for the Property, or of the municipal or allotment record where the Property carries no revenue entry, and to verify that no entry has been made in favour of the Caretaker or of any person claiming through him.
11.4 The Parties shall meet, in person or by video call, once in every Term, and in any event before the licence is renewed, to take the acknowledgment in PART A of the SECOND SCHEDULE and to review this arrangement.
- 12. CONSEQUENCES OF BREACH
12.1 Time is of the essence of clause 5 and clause 8.4.
12.2 The Caretaker acknowledges that damages would not be an adequate remedy for a breach of clause 3, clause 5 or clause 7, and that the Owner shall be entitled to an injunction, to a mandatory injunction, and to a decree for possession, in addition to damages.
12.3 The Caretaker acknowledges that dishonest misappropriation of the keys or movables entrusted to him, dishonest inducement of the Owner to part with the Property or with money, unlawful entry into or remaining upon the Property after revocation, and the making or use of any false document relating to the Property, are offences under the Bharatiya Nyaya Sanhita, 2023, and that the Owner may make a complaint accordingly.
12.4 The Owner, being a non-resident, may in addition pursue the remedies available through the machinery established by the State of Punjab for non-resident Indians, including a complaint to the NRI Wing of the Punjab Police at Phase-7, SAS Nagar (Mohali) or to any notified NRI police station, and a representation to the Punjab State Commission for Non-Resident Indians constituted under the Punjab State Commission for Non-resident Indians Act, 2011, whose findings are recommendatory.
- 13. NOTICES
13.3 The Caretaker shall inform the Owner in writing of any change in his address or mobile number within seven days.
- 14. PERSONAL NATURE OF THE LICENCE
14.1 The licence granted by this Agreement is personal to the Caretaker. It is granted because of the Owner's confidence in him and for no other reason. It is not transferable, not assignable, not heritable and not capable of devolution.
- 15. GOVERNING LAW AND FORUM
15.1 This Agreement is governed by the laws of India.
- 16. STAMP, REGISTRATION AND GENERAL
16.1 Stamp duty. This Agreement is chargeable with the duty payable upon an agreement not otherwise provided for under Schedule I-A of the Indian Stamp Act, 1899 as that Schedule applies to Punjab. Physical non-judicial stamp paper having been discontinued in Punjab, the duty is paid by an electronic stamp certificate issued through Stock Holding Corporation of India Ltd, the Central Record Keeping Agency for Punjab, obtained in the name of the Owner. The cost of stamping, and of registration if this Agreement is registered, is borne by the Owner.
16.2 When the duty was paid. __________
16.4 This Agreement, with its Schedules, contains the whole agreement between the Parties in respect of its subject matter and supersedes every earlier arrangement, understanding, writing or assurance between them concerning the Property, save that nothing in this clause displaces the record in Recital E of the permissive character of any earlier attendance upon the Property.
16.5 No variation of this Agreement is effective unless made in writing and signed by both Parties. No oral variation, no course of dealing, no indulgence and no delay by the Owner in enforcing any term shall operate as a waiver of any right, or as consent to anything done in breach.
16.6 If any provision of this Agreement is held invalid or unenforceable, that provision shall be severed and the remainder shall continue in full force.
16.7 This Agreement is executed in two counterparts, one retained by the Owner and one by the Caretaker, each of which is an original.
FIRST SCHEDULE
(The Property)
Together with all structures, boundary walls, gates, trees, fixtures, fittings, wells, tubewells, motors, tanks, pipes and installations standing upon the said property, and all rights of way and access appurtenant to it.
SECOND SCHEDULE
PART A
(Form of the Caretaker's acknowledgment of permissive possession. Signed by the Caretaker alone, not later than the tenth month of every Term and before any renewal. This form renews nothing.)
ACKNOWLEDGMENT OF PERMISSIVE OCCUPATION
- 2. That the Owner named in that Agreement is the absolute owner of the said property and that legal possession of it has at all times remained with the Owner.
- 3. That I have no right, title, interest, share, claim or demand of any nature in or over the said property or any part of it, that my presence upon it is and has always been by the bare permission of the Owner, and that it has never been and is not adverse to the Owner.
- 4. That I hold no agreement to sell, no power of attorney, no will, no gift and no receipt for any payment in respect of the said property, and that I have paid nothing to the Owner for my presence upon it.
- 5. That I have not applied for and have not procured any entry of my name or of the name of any member of my family in any revenue, municipal, utility, electoral or other record in respect of the said property.
- 6. That I shall vacate the said property and deliver up all keys and movables entrusted to me immediately upon the Owner requiring me to do so.
Signature of the Caretaker: ..............................
Signed in the presence of:
Witness 1: Name .............................. Address .............................. Signature ..............................
Witness 2: Name .............................. Address .............................. Signature ..............................
SECOND SCHEDULE
PART B
(Form of renewal. Signed by BOTH Parties. This, and not Part A, is what renews the licence under clause 2.3.)
RENEWAL OF CARETAKER AND PERMISSIVE OCCUPATION AGREEMENT
- 1. The licence granted by that Agreement is renewed for a fresh term commencing on ......... day of ........................ 20......... and determining on ......... day of ........................ 20........., which fresh term is of ......... months and does not exceed eleven months.
- 2. Every term and condition of that Agreement, including the acknowledgment of the Owner's title and of permissive possession in clause 7, applies to the renewed term as though set out in this renewal in full, and the renewed term is a continuation of a permissive occupation which has at no time been adverse to the Owner.
- 3. The Caretaker has signed, or signs together with this renewal, the acknowledgment in Part A of the Second Schedule in respect of the term now expiring.
- 4. Nothing in this renewal creates any lease, tenancy or interest in immovable property, and no rent is reserved.
- 5. Where the Property is held by more than one owner, every owner who signed that Agreement signs this renewal.
Signature for the Owner: .............................. Signature of the Caretaker: ..............................
Further signature for the Owner (co-owner): .............................. Further signature for the Owner (co-owner): ..............................
Signed in the presence of:
Witness 1: Name .............................. Address .............................. Signature ..............................
Witness 2: Name .............................. Address .............................. Signature ..............................
THIRD SCHEDULE
(Keys, documents and movables handed to the Caretaker on the commencement of the Term)
The Caretaker holds every item listed above as bailee of the Owner and shall deliver each of them up on revocation or expiry.
IN WITNESS WHEREOF the Parties have set their hands to this Agreement at __________ on __________, in the presence of the witnesses named below, each Party having signed every page hereof.
SIGNED by the Owner SIGNED by the Caretaker
WITNESSES: