The court established the principle that the terms of the expired lease, including the charge for rent and interest, apply to the implied lease created by holding over, and the period of limitation for recovery of rent during the period of holding over is three years.

1. In this appeal by the third defendant arising out of the decree of the court below which directed the defendants to deliver possession of the plaint properties with arrears of rent and future profits the only points raised are whether the plaintiff is entitled to the charge given on the immovable properties in respect of the arrears claimed and if not whether rent for more than three years preceding the date of suit should have been decreed.

2. On 17.3.1100 the tarwad of defendants 1 to 19 executed a possessory mortgage to Krishna Kammath, now dead, the father of the plaintiff. On the same day the tarwad took the properties back on lease from the mortgagee and executed a document to him embodying the terms of the lease. The lease was for an year certain on a rent of Rs. 118/-. Out of this sum Rs. 10/- was agreed to be utilised for payment of land revenue and jenmi's dues and Rs. 108 was agreed to be paid in two equal bi-annual instalments. On default of such payment interest on the overdue amount at the rate of 12 per cent was agreed to be paid. A charge on the equity of redemption was created for the outstanding rent and interest. It was stipulated that the properties should be surrendered at the end of the year. No payment of rent was made nor were the properties surrendered; but the tarwad continued to possess the properties as before on the landlord's assent. In the year 1104 there was a partition in the tarwad. The mortgaged properties as also the mortgage amount and arrears of rent were divided and allotted to certain members and groups stating that the proportionate mortgage amount, overdue rent and interest were a charge on the properties allotted. In the year 1109 there was a sub-partition in one of the branches which got separated at the earlier partition with an allotment of mortgaged property and liabilities. That partition deed dealt with the slice of the mortgaged property that the branch obtained in the same manner as at the tarwad partition, that is to say, the properties were divided with proportionate liabilities regarding mortgage amount, rent and interest all of which were stated to be charged upon the respective slices into which the mortgaged property was divided. The mortgagee landlord was not a party to these documents nor was it proved that he assented to or accepted their terms afterwards. The defence plea that the relief to the plaintiff should be apportioned as against the several divided slices of the property as divided at the aforesaid partitions with proportionate liabilities was, therefore, repelled by the court below and has not been pressed before us.

3. The court below found that the charge for rent and interest created by the document executed by the tarwad over the equity of redemption of the mortgaged properties was one of the terms of the lease, that the lessee having after the expiration of the lease by efflux of time continued in possession with the permission of the lessor, there arose a yearly lease by holding over to which all the terms of the expired lease including the one for a charge on the equity of redemption applied, that twelve years were available to enforce the charge and that the arrears claimed having arisen within that period the recovery of no part of it was barred by limitation.

4. The position of a tenant holding over is thus summarised in Woodfall on Landlord and Tenant, 25th Edition (1954), in paragraph 725, pp. 294-95:

"725. Holding over by a tenant and subsequent payment of rent. Where a tenant for a term of years holds over after the expiration of his lease, he becomes a tenant on sufferance; but when he pays, or expressly agrees to pay, any subsequent rent at the previous yearly rate, a new tenancy from year to year may thereby be created upon the same terms and conditions as those contained in the expired lease so far as the same are applicable to and not inconsistent with a yearly tenancy. This however is a matter of evidence rather than of law, th