Bapna, J. - (1.) THIS is second appeal by the defendants in a suit for ejectment and arrears of rent in respect of two shops situated at Nim-ka-Thana.
(2.) THE respondents, Rameshwar and his brother Boda Lal, sued the appellants, Rameshwar and his son Madan Lal in the Court of Munsif, Nim-ka-Thana, on the 4th September, 1951, on the allegations that the premises in dispute, namely, the two shops described in the plaint, were given on lease under an oral agreement to the defendants on Chait Sud 7, Svt. 2005, (16th April, 1948), for a period of three years in consideration of Rs. 800/- by way of rent. It was stated that a document of lease was also executed two days later. But as it was neither stamped nor registered, it was not admissible in evidence. It was alleged that the defendant had paid Rs. 534/- on account of rent for two years, but did not pay any rent for the subsequent period. THE plaintiffs claimed Rs. 266/- as arrears of rent for one year, and thereafter damage for 4-1/2 months of occupation of the shops at Rs. 800/- per year, and prayed for ejectment. An allegation was made that a notice of ejectment had been duly served on the defendants. The defendants denied their liability for arrear of rent and ejectment. It was stated that the two shops had been taken on lease from the plaintiffs on Chait Sudi 9, Svt. 2005, (not on Chait Sudi 7) without any period fixed for the duration of the lease but at a rent of Rs. 267/- per year. They denied execution of any document of lease, and pleaded that the notices served by the plaintiffs for ejectment were not valid according to law, and did not entitle the plaintiffs to sue for ejectment. Certain other pleas were taken which were abandoned, and are not now in dispute. The trial court held that the alleged document of lease being unregistered was inadmissible in evidence, and could not be referred to for deciding the terms on which the lease was granted, but as the defendants admitted the tenancy, they would be considered to be tenants-at-will, and no formal notice beyond a simple demand was necessary to terminate such tenancy. It was observed that it was not necessary to decide whether the notice was or was not in accordance with the provisions of sec. 106 of the Transfer of Property Act. The suit for ejectment was accordingly decreed, and the plaintiffs were held entitled to recover 282/8- on account of arrears of rent and Rs. 139/8/- as damages at the rate of Rs. 534 - a year for the remaining period of occupation. The same judgment was upheld on appeal. Hence this second appeal. It was argued by learned counsel for the appellants that the two courts had committed an error in holding the defendants to be tenants-at-will, and it was urged that a notice in conformity with the provisions of sec. 106 of the Transfer of Property Act was necessary for the termination of the tenancy, and in the absence of such a valid notice, the suit should have been dismissed. In this connection a two-fold argument was addressed at the bar. It was argued that an oral lease for more than a year was valid, at any rate, for one year, and thereafter the tenancy became one from month to month by holding over. Reliance was placed on the leading case Aziz Ahmad vs. Alaudin Ahmad (1), which was upheld on appeal in Alaudin Ahmad vs. Aziz Ahmad (2 ). The other argument was that the tenancy having originated by an unregistered lease for more than one year, though invalid for the term prescribed in the document, may be deemed to be good as a lease for one year and thereafter the tenancy became from month to month as the lessors accepted rent and assented to the tenant's continuing in possession, on the principle of holding over under sec. 116 of the Transfer of Property Act, the leading case being Adinath Bhattacharjee vs. Krishna Chandra Bhattacharjee (3 ). On behalf of the respondent it was urged that the Allahabad High Court had dissented from the view taken in above cases and it was held in Sahu Anand Sarup vs. S. Taiyab Hasan (4) that where the lease could not be proved owing to non-registration, it was not open to the court to infer a lease from the circumstances of the case on some terms other than those would could be inferred from the agreement to lease, and the tenants in possession should be treated as licensees. There is some force in the criticism levelled by the Allahabad High Court that a court cannot make out a new contract for the parties when the terms of the original contract cannot be proved owing to the absence of a properly registered document. Lodge J. doubted the correctness of the view taken in Adinath's case in Ram Mohan Rao vs. Lalit Chandra Sen Gupta (5 ). According to the corresponding provision of sec. 107 of the Transfer of Property Act in force in Jaipur a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent could be made only by a registered instrument. The actual contract between the parties, whether oral or reduced into writing, was one which the law did not allow to be proved and given effect to in the absence of registration, and, therefore it must be held that there was no valid contract between the parties. The case for either party being that the plaintiffs were landlords and the defendants were tenants, the tenancy can only be deemed to be one from month to month terminable on the part of either the lessor or the lessee by fifteen days' notice, expiring with the end of a month of the tenancy, under sec. 106 of the Transfer of Property Act, for that section says that such would be the presumption in the absence of a contract to the contrary. This view was taken in an earlier Calcutta case. Aklu vs. Emman (6) and has recently been approved by their Lordships of the Supreme Court in Ram Kumar Das vs. Jagdish Chandra Deo (7), where their Lordships observed that; - "one serious objection to this view (taken in Aziz Ahmad's case) seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case. " The same criticism would be applicable to Sadu Anand Sarup's case. The view taken by the two lower courts that the defendants were tenants-at-will is entirely incorrect. A tenancy-at-will can only be created by express agreement terminable at the will of either party or by implication where no rent is reserved,and it is taken for granted that the occupation is terminable at the request of either party at any time. Where in a case like the present the tenancy is created by express contract between the parties, there is no scope for characterising the tenancy as one at will. Where there is no provision as to the duration of a tenancy, sec. 106 of the Transfer of Property Act comes into play, and it will be presumed to be one from year to year or month to month according to the purpose of tenancy, and not a tenancy-at-will. It was contended by learned counsel for the appellants that the provision of sec. 106 of the Transfer of Property Act being applicable, the notice, which was served on the defendants for determination of the tenancy was not valid. The two courts have not decided this question, as they considered the tenancy to be at will. As the evidence is on the record, it is not necessary to remand this case for the purpose of a finding on this question. It was argued by learned counsel for the respondents that the defendants admitted two notices having been received by them in their written statements, one on 26th March, 1951, and the other on 9th May, 1951. They have not produced either of them, and while the plaintiffs have produced a copy of the notice dated 9th May, 1951, the other notice has not been brought on record, and in the absence of that notice, it cannot be said that the said notice dated 26th March, 1951, was also invalid, although the notice of 9th May, 1955, can be the subject of determination by this court, and unless both the notices are held to be invalid, the plea raised in defence cannot be entertained. This leads to the question as to the burden of proof of determination of the tenancy. It is now settled law that the burden of proof of determination of tenancy by notice is on the plaintiff landlord. A reference may be made to Mozam Shaikh vs. Annanda Prasad Bhadra (8), Chandra-shekharaswami Siva Matha Temple, Mara-mangalam vs. Nainar Ammal (9), F. S. Old vs. J. A. Shail (10), Ganoo vs. Shri Dev Sidhesh war (11), and Chatter Singh vs. Ishri Prasad (12) In cases where the defendant admitted having received notice but denied its legality, the burden of proof still lies on the plaintiff, because service of a valid notice to quit is an essential part of the plaintiff's cause of action in a suit for ejectment. The country view held in Suresh Chandra Chat-terjee vs. Kanti Chandra Bhattacharjee (13) that when notice was proved to have been served on the defendant, the burden of proof is on the defendant that it was invalid is, in my opinion, not correct. In the present case, while the defendants no doubt admitted having received two notices, the plaintiffs have alleged service of only one notice in the plaint without giving its date. In his statement as a witness also the plaintiff deposed to only one notice being served, and it was the one dated 9th May, 1951, a copy and the postal acknowledgment receipt whereof he had produ-ced. The copy of the notice dated 9th May, 1951, produced by the plaintiff says that the defendants should deem their tenancy to be terminated with effect from the 18th of April, 1951, and should deliver possession within 15 days of the receipt of notice. This type of notice is not contemplate under the law. The notice for determination of tenancy must mention some future date for determination of tenancy and not a past date for its determination, as mentioned in this cases The subsequent demand to vacate the shop within 15 days is the demand for delivery of possession on the ground that the tenancy had already determined according to the notice of the plaintiff. If this subsequent clause be considered as one inserted for the purpose of determining the tenancy, it would still be invalid, as it would not expire with the end of the month of the tenancy, although, as stated above, it cannot bear that interpretation. In my opinion, the original terms of the tenancy being incapable of being proved according to law, the tenancy created was one from month to month, and had not been determined by a due notice. The plaintiffs are, therefore, not entitled to any decree for ejectment of the defendants. The tenancy not having been determined, the plaintiffs are not entitled also to any damages after the expiry of 18th April, 1951, but would be entitled to rent only, calculated on the basis of a proportionate rent for the proportionate period at the rate of Rs. 266/- per year. The appeal is therefore, allowed. The degree of the lower court as to the claim for arrears of rent is reduced to Rs. 365/ -. The claim fore ejectment will stand dismissed. The defendants will get three-fourths of the costs in all the courts. Learned counsel for the respondents wants that leave for appeal to Division Bench should be granted as substantial questions of law have been involved in this case. Leave to appeal is hereby granted. . ;