JUDGMENT

Tek Chand, J. - This appeal arises out of a suit instituted by Mengh Raj, plaintiff, respondent, against Nand Lal and Murli, defendant-appellants, for recovery of arrears of rent and ejectment. The plaintiff alleged that on 11th June 1927 the defendants executed a rent deed, Ex. P-2, in his favour, that they continued to pay rent at the stipulated rate until 33 months before the suit, but that they had not paid rent since and were liable to be ejected. The defendants, who are real brothers, denied the tenancy. They alleged that Ex. P-2 was not executed by them and that they were in possession of the house as owners. They further averred that Ex. P-2 required to be compulsorily registered under Section 17(1)(d), Registration Act, and not being registered was inadmissible in evidence. The trial Judge found that Ex. P. 2 had been executed by Nand Lal but that its execution by Murli had not been proved. He held that Ex. P-2 was a rent deed reserving a yearly rent and was inadmissible in evidence for want of registration and consequently the alleged tenancy could not be proved aliunde. On these findings he dismissed the suit against both defendants. The plaintiff appealed to the Senior Subordinate Judge who agreed with the trial Judge on all points and dismissed the appeal.

2. On second appeal, a learned Judge of this Court, sitting in Single Bench held that the rent deed (Ex. P-2) did not require registration. The learned Judge passed a decree for ejectment and for recovery of the sum claimed as arrears of rent against both defendants, without expressly setting aside the finding of the Courts below that execution of the deed by Murli had not been proved. He, however, granted a certificate for a further appeal under Clause 10, Letters Patent. The first question for consideration is whether the rent deed Ex. P-2 requires registration. A perusal of this document shows that it was not a lease in which a yearly rent was reserved. On the other hand, it was a lease for one year certain (Jeth, Sambat 1985) on a rent of Rs. 40-8-0 for the whole year, which the executants could pay at the rate of Rupees 3-6-0 per mensem month by month. It was agreed, that in default the landlord could eject them and recover arrears of rent in any manner he liked. It was further stipulated that after the expiry of the term, it would be the option of the landlord to give it to other tenants. The terms clearly show that it was a lease for one year certain, with the option to the landlord to permit the tenants to continue to live thereafter. A case very similar to the present one will be found in Apu Budgavda v. Narhari Annajee (1878) 3 Bom 21 where it was held that a lease for one year certain, containing an expression, on the tenant's part, of readiness to hold the land longer at the same rent if the landlord should desire it, is a lease for a term not exceeding one year, the registration of which is optional under Clause 18, Registration Act. This is not a tenancy from year to year or for the term exceeding one year or for an indefinite period in which yearly rent had been reserved. We, therefore, hold that the deed (Ex. P-2) did not require registration and that it was admissible in evidence.

3. The Courts below have concurrently found execution of Ex. P-2 by Nand Lal proved. He admitted his thumb-mark on the document but alleged that the deed related to some other house. This explanation is obviously false and had been rightly rejected. The plaintiff's case against him is, therefore, fully proved. With regard to Murli, however, we are of opinion that the matter requires further investigation. The plaintiff examined the scribe as well as one of the attesting witnesses, who deposed that Murli had put his thumb-mark on Ex. P-2 in their presence. The Senior Subordinate Judge has rejected the scribe's evidence on the ground that "he had not the courage to bring his register to show that Murli had thumb-marked the register." It appears, however, that neith