Modi, J - (1.) THIS is a civil regular second appeal by the defendant Kushalraj in a suit for rent and ejectment. There is no dispute at this date so far as the decree for rent is concerned, and, therefore, the only question which is in controversy in this appeal is that relating to ejectment.
(2.) THE facts leading up to this appeal in so far as they are material for our present purposes may be stated as follows. THE defendant appellant and his father Ganeshmal obtained the suit premises on rent from the plaintiffs by a rent-note dated the 6th July, 1953 (Ex. 1 ). By this rent-note, the defendant had agreed to pay an annual rent of Rs. 348/- or at the rate of Rs. 29/- per mensem. It was further agreed between the parties that the defendants would vacate the suit premises whenever the landlords so desired. This rent note was registered by Ganeshmal but not by Kushal Raj. THE case of the plaintiffs was that the tenants had allowed rent, amounting to Rs. 609/- to fall in arrears and that they gave a notice to the defendants to pay the arrears of rent as well as to vacate the premises in suit but without any avail. Consequently, they brought the suit, out of which this appeal arises, on the 4th April, 1956, for the reliefs mentioned above. Defendant Ganeshmal admitted to have executed the rent-note but contended that he had done so in his individual capacity and as karta of the alleged joint Hindu family consisting of himself and his son Kushalraj, appellant defendant. He further contended that one Chandanmal had obtained an attachment against him in connection with the execution of a money-decree and at that time the plaintiffs (Tarachand and Deoraj) had agreed to stand as sureties for him to the extent of Rs. 5800/-, and the latter had executed a writing in favour of the plaintiffs to the effect that he would be liale to pay the sum of Rs. 5800/- to the plaintiffs. Thereafter the defendant had made a mortgage of the suit premises for the aforesaid sum of Rs. 5800/-and had also executed the rent-note in suit. The contention of the defendant was that at the time the mortgage-deed and the rent-note were registered, it had been agreed by the plaintiffs that they would return the letter by which the defendant had promised to pay the sum of Rs. 5800/- to the defendant and that until they did so, the defendant would not be liable to pay any rent. This writing had never been returned by the plaintiffs, and, therefore, they were not entitled to charge any rent from the defendant or to get the premises vacated. This defendant, however, died during the pendency of the suit and his legal representatives Msts. Gajran and Jatna were brought on the record but they have not taken any interest in this litigation. The other defendant who is the appellant before this Court resisted the suit. He denied to have executed the rent-note which is the basis of this suit. He further contended that as the rent-note was not registered by him, it was inadmissible in evidence so far as he was concerned. Upon these pleadings, the trial proceeded and eventually the plaintiffs' suit has been decreed. The defendant appellant has now come up in second appeal to this Court. Three grounds have been raised before me in this appeal - (1) The courts below have fallen into error in holding that the appellant had executed the rent-note in question as he was not in Ghanerao, where the suit premises are situate, but was in Bombay, at the relevant time. (2) The courts below have fallen into a serious error of law in holding that the rent-note was, admissible against the appellant even if it was not registered by him. ' (3) The rent-note which is the basis of the suit was executed in lieu of interest, and, therefore, no separate suit for rent could be based on it. I now propose to answer these questions in the order in which I have mentioned them above. As to the execution of the rent-note by the defendant appellant, there is a concurrent finding of the two courts below that it is proved to have been executed by him. In coming to this conclusion, the courts below fully took into account the alleged circumstance that the appellant was at Bombay and not in Ghanerao (where the suit property was situate at the relevant time, and they have found that the rent-note having been executed by the father Ganeshmal in the first instance, it was then sent to Kushalraj who was in Bombay and the latter returned the same after signing it, and Kushalraj's signatures were duly proved on the document. The question which is sought to be raised before this Court is one of fact, pure and simple and the finding of the courts below on a point like this is fully binding on this Court in second appeal. Learned counsel is, therefore not entitled to reagitate it at this stage. The next! question is about the admissibility of the rent-note against Kushal Raj on the ground that it was not registered by him. This at once raises the question whether the rent-note was compulsory registrable. The contention of learned counsel is that this rent-note reserved a yearly rent and was, therefore, compulsory registrable under clause (d) of sub-sec. (1) of sec. 17 of the Registration Act. I have carefully considered this contention and have come to the conclusion that there is no force in it. The reason is that a perusal of the terms of this rent-note clearly shows that it was a tenancy-at-will inasmuch as the defendant had agreed to vacate the premises in suit whenever the landlords should desire them to do so; and that being so, a tenancy like this cannot be said to be one for a period from year to year or reserving a yearly rent. I should also like to point out that the mere fact that the document provided for payment of rent per annum does not and cannot make any material difference to the conclusion at which I have arrived. Thus in Chander Sen Vs. Emperor (1) the facts were that the document which was the basis of the suit purported to be one for thirty years and reserved a yearly rent of Rs. ft/8/-; but it was further stipulated between the parties that the defendant would vacate the land in case he failed to pay the rent reserved or whenever the lessor required him to do so. One of the questions raised was whether this document was compulsory registrable, and it was held that as the lessor could terminate the tenancy on the very day succeeding the grant of the lease, it was not a lease for a term exceeding one year, and, therefore, the lease did not require registration. I . Again, in Aishan Vs. Municipal Committee (2), it was held that a mere recital of an annual rate of rent in a lease did not constitute it as one reserving a yearly rent within the meaning of sec. 17 (l) (d) of the Registration Act. Again in Menghraj Vs. Nandlal (3) it was held that the mere recital that rent was to be paid annually would not by itself make the due rent-note compulsory registrable, and that where what had been created was a tenancy-at-will even though the rent was fixed and was payable annually, the document was not subject to compulsory registration. The principle which is deducible from the case law discussed above is that a lease in which a yearly rent is reserved within the meaning of sec. 17 (l) (d) of the Registration Act must be one which, on a proper construction thereof, creates a tenancy from year to year and in any case it must not amount to a tenancy which can be terminated by a landlord at his option at any time or at the end of the year of the tenancy. I respectfully concur in this view.
(3.) THE position, therefore, at which we arrive is that the rent-note in suit, inasmuch as it created a mere tenancy-at-will even though it fixed an annual rent was not compulsory registrable. THEre could be no bar, therefore, to the admissibility of this document against the defendant appellant once it is held to have been executed by him. This brings us to the last contention raised by learned counsel for the appellant and that is that the present suit for rent is not maintainable because the rent was really interest payable on the mortgage money borrowed by the defendants from the plaintiffs. For one thing, this point does not appear to have been raised at all in the courts below, and the point that was sought to be raised was entirely different and which I have stated at length above but upon which, as observed in the judgment of the trial court, the defendants did not lead any evidence whatever. Even if this point is considered to be as one of law, the view which has prevailed in this Court is that a right which arises to the mortgagee to sue for rent on the basis of a rent-note executed in his favour by the mortgagor with respect to the mortgaged property, creates an independent obligation, and, therefore, a suit by him for arrears of rent is perfectly competent, except where the mortgage-deed specifically provides that on failure to pay rent a suit for the entire money could be filed, which is by no means the case here. See Jankidas Vs. Laxminarain (4 ). That being so, this contention must also fail. For the reasons mentioned above, there is no force in this appeal, and it is hereby dismissed; but there will be no order as to costs as the plaintiffs respondents have not put in appearance in this court. .;