1. Dinanath father of the defendants held the land in suit on what I will assume to be a lease. He held it under an instrument dated September 11, 1919, which was not registered though it purported to be for a period of ten years (subject to three months notice on either side) from July 14, 1917. Dinanath died in November 1918 and the defendants as his heirs continued his possession On December 7, 1926, the defendants applied for a temporary lease and offered to pay in advance the annual rent to be fixed by the agent. They deposited Rs. 25 as advance rent with their proposal form as well as Rs. 10 for stamps for their new agreement. Their proposal form made no reference to the lease of Dinanath. On April 1, 1927, that is before the original term of Dinanath had expired they received from the plaintiffs a letter saying.
The lease granted to your father Dinanath Pal which was subsequently cancelled has again been given to you at an annual rent of Rs. 25 for ten years
2. It may be doubted whether this was in strictness an acceptance of the defendants' proposal but I will assume that it was an acceptance and not a new offer. On June 18, 1927, the plaintiffs sent to defendants a bill for rent from May 19, 1927, to March 31, 1928, at the rate of Rs. 125 per annum giving credit for Rs. 25 as paid in December, 1926. The defendants refused to pay rent at this rate and on September 8, 1927, the plaintiffs gave notice to quit at the end of three months from the last day of September, 1927. The notice recites that the defendants are in occupation as heirs of Dinanath and purports to terminate his 'license'.
3. The letter of April 1, 1927, was put in evidence by the defendants. If it can be received as evidence of a fresh tenancy, the question arises whether the terms of Dinanath's lease can be referred to show that the new arrangement was subject to three months' notice. I am of opinion that they can and they want of registration as the original lease does not prevent this. The terms are incorporated in the letter by reference to the earlier document and if the new lease was a fresh lease altogether as defendants contend, the old one can be referred to for a collateral purpose. The defendants' case before us is that they were not holding under the old lease at all but under a new one. To find the terms of the new one so runs the argument in this Court we cannot look at the letter because it is not registered. The question is can the defendants on this evidence not as a abstract possibility, but on this evidence prove a fresh tenancy without the letter? In my opinion they cannot. The proposal form by itself proves nothing. The repudiated bill of June 18, 1927, is against them. There is no proof that Rs. 25 was accepted as an year's rent under a new tenancy save the letter of April 1, 1927. That cannot be taken as proof of a new tenancy save upon terms which put the defendants out of court. It is idle to say that as proof of acceptance of rent it is proof of a new tenancy contrary to its terms.
4. I agree with the Subordinate Judge that the notice to quit is not in any view rendered invalid by reason of the recital. If it be said that the plaintiffs cannot proceed on the terms of the original tenancy as to notice, because these are not proved for want of registration of the instrument of September 11, 1919, the answer is that this argument was disclaimed before us by the defendant's Advocate, and for good reason. The pleadings were badly drawn but the original terms were not denied on the pleadings, nor were they questioned by the issues and they need not be proved now.
5. I would allow the appeal with costs before us and before the learned Judge and restore the decree of the Subordinate Judge.
6. Mukerji, J.
7. I agree.