A kerayanama, which is executed by only one party and is not in conformity with the provisions of Sec.107, Transfer of Property Act, is invalid and cannot form the basis of a suit for rent.

Raj Kishore Prasad, J.

1. This application, under Sec.25, Provincial Small Cause Courts Act, is by the defendant, directed against the judgment dated 17-6-55 of Mr. Krishna Deva Prasad, Small Cause Court Judge at Sasaram, decreeing the plaintiffs suit.

2. The defendant executed a usufructuary mortgage in plaintiffs favour, mortgaging his house to him; and by a keravanama, executed on the same date, the defendant took back the mortgaged house on rent at Rs. 6/- per month from the plaintiff. The defendant did not pay the house rent from 16-2-52 to 15-2-55, and, therefore, the present suit was brought by the plaintiff on 16-2-55 for recovery of the arrears of rent for the above period.

3. The defendant contested the suit. His defence was that the agreement between the parties was not for execution of a usufructuary mortgage deed, but for execution of a simple mortgage deed and the defendant trusting the plaintiff gave his signature to the documents, which were never read over to him, but some time later on, when the plaintiff demanded rent from him, it was disclosed that the plaintiff had got ijara and kerayanama deeds executed by the defendant. The defendant then raised a hue and cry and thereafter, at the intervention of some people, it was settled that the defendant should execute a simple mortgage, in lieu 6f the rehan and the kerayanama. The defendant accordingly executed a simple mortgage on 10-10-52 in favour of the plaintiff. The rehan and kerayanama deeds were to be returned by the plaintiff when the final payment was to be made.

The defendant further contended that there was no relationship of landlord and tenant between the parties, and therefore, the present suit was not maintainable. He also pleaded that the plaintiff could not, realise rent at Rs. 6 per month, because the kerayanama was executed merely as a device for realisation of interest, and the plaintiff cannot realise interest at a rate higher than that permissible under the Bihar Money-lenders Act.

4. The learned Small Cause Court Judge accepted the plaintiffs case that the ijara and the kerayanama were both genuine, and were executed by the defendant. He further found that as both the parties had not executed the lease in respect of the house, as required by Sec.107, Transfer of Property Act, it was not a valid contract; but as the defendant remained in occupation of the house, he was bound to pay compensation for use and occupation of the house at the rate specified in the kerayanama. He accordingly decreed the plaintiffs suit.

5. Mr. Jagdish Pandey, appearing for the petitioner, has made the following submissions; (1), that the ijara and the kerayanama were one, and part of the same transaction, and, therefore, no relationship of landlord and tenant was created by the kerayanama; (2) that the ijara term having expired, the plaintiffs remedy to recover the house rent, which really represented the interest on the mortgage money, was under Sec. 68, Transfer of Property Act, and not by a suit for rent; (3) that the kerayanama assuming it to be a lease, was invalid, as found by the Court below also, as it was hit by the provisions of Sec.107, Transfer of Property Act, and as such the present suit on its basis was net maintainable; (4) that the simple mortgage executed by the defendant in favour of the plaintiff extinguished the ijara and the kerayanama executed by him earlier in favour of the plaintiff, and no suit could be brought on the basis of the kerayanama; (5) that the plaintiff was not entitled to recover compensation even for use and occupation as there was no contract for the same; and (6) that, in any view of the matter, the plaintiff was not entitled to a decree at more than 9 per cent per annum.

6. As regards the first contention that the ijara and the kerayanama are parts of the same transaction, it is necessary to know the principles, which should guide a Court in such a case.

7. There is no single crucial test to determine as to whether