Bhandari, C.J:— This petition raises the question whether a certain agreement entered into between one Buta Singh and Bakhsha constitutes a deed of lease or a deed which merely secures the rent of the property.
2. It appear that one Bakhshi Ram alias Bakhsha is the owner of a certain house situate in Ferozepur. On the 12th January, 1946 he executed a deed of mortgage in a sum of Rs. 1200 in favour of Buta Singh. This was followed by a rent note dated the 13th July, 1946 by which he agreed to pay a sum of Rs. 6 per mensem by way of rent in respect of this property.
3. The house in question was later destroyed by floods and Bakhsha constructed a new house on the same site. On the 13th November, 1948 Bakhsha executed a fresh deed of mortgage in a sum of Rs. 2,600 in favour of Buta Singh and on the same day, he agreed orally to pay rent at the rate of Rs. 8 per mensem to Buta Singh who was the mortgagee with possession. Bakhsha failed to pay the rent which was due from him and Buta Singh accordingly secured an order for the ejectment of Bakhsha which was later confirmed by the District Judge in appeal. Bakhsha has now presented an application under Article 227 of the Constitution.
4. Mr. Abnasha Singh, who appears for the petitioner in the present case, invites my attention to Baijnath Prasad v. Jang Bahadur Singh . A.I.R 1955 Pat. 357., in which a Division Bench of the Pacha High Court held that where a mortgagor took a lease of the mortgaged properties by executing a kirayanama in favour of the mortgagee and the so-called rent payable under it in fact represented the interest payable on the mortgage money and not a rent for use and occupation, the kirayanama was merely a service for regular payment of interest on the mortgage money and not a lease of the properties.
5. The relationship of landlord and tenant comes into being when one party agrees to divest himself of the possession and the other agrees to come into it. The agreement may be express or implied but it cannot exist without such agreement. No particular form of words is necessary to constitute an instrument or lease but it will be deemed to be a lease if a perusal of the whole instrument or transaction makes it quite clear that the intention of the parties was to create that relationship. Payment of rent is a usual though not an essential incident of a tenancy.
6. The circumstances of the present case make it quite clear that the relationship between the parties to this litigation is that of landlord and tenant. Bakhsha who is the owner of the house in question mortgaged it with possession to Buta Singh and several months later he executed a rent note in favour of the mortgagee. He thus became a tenant of the mortgagee. The house was later destroyed by floods and a fresh deed of mortgage was executed. As the mortgage was with possession and as the owner of the house continued to stay on in the premises it seems to me that he occupied the premises not in his capacity as owner but in his capacity as a tenant of the person with whom the property was mortgaged. When a mortgagee in possession allows the mortgagor to remain in occupation of the mortgaged properties as a tenant and the mortgagor duly executes and registers the lease, the relation of landlord and tenant comes into existence between the parties and the mortgagor cannot be allowed to turn round and plead that the deed executed by him should not be interpreted as a lease (Asa Ram v. Kishan Chand . A.I.R 1930 Lah. 386.).
7. For these reasons I am of the opinion that the Courts below have come to a correct determination in point of law and the only order that can be passed on this petition is that it must be dismissed with costs. I would order accordingly.
8. Petition dismissed.