JUDGMENT : P.K. Subramonia Iyer, J. 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. 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, the question being what may fairly be inferred as the intention of the parties. This however is a matter of evidence rather than of law, the question being what may fairly be inferred as the intention of the parties. In the absence of any evidence one way or the other, it seems that upon a holding over and payment of rent, a jury would be directed to find a tenancy on the terms of the expired lease, even if there had been an assignment of the reversion prior to the holding over. The inference of a tenancy from year to year is to be drawn only where the payments bear reference to a yearly rent; there is thus an important distinction between a monthly or quarterly rent and monthly or quarterly instalments of a yearly rent. Where in a tenancy agreement for one year the rent is expressed to be so much per week, and the tenant holds over paying the same weekly rent, only a weekly tenancy should be presumed. Where the tenancy was for one year, and the tenant, holding over at the end of it, left a letter demanding rent for a new quarter in advance unanswered, and expressed a wish to continue the present tenancy, the Court of Appeal held that there was a tenancy from year to year on the terms of the former lease, so far as not inconsistent with such tenancy. The question is, quo animo the rent was received, and what the real intention of both parties was. It is thought that the tendency of the courts nowadays is to require rather more solid evidence of an intention to create a further tenancy than was at one time the case. So where, after the termination of a service occupancy under which the servant had been paying 15 s. a week for the premises he occupied, the employer accepted two more such payments, but there was no evidence of any real intention to create a new tenancy, it was held that no tenancy was created. So where, after the termination of a service occupancy under which the servant had been paying 15 s. a week for the premises he occupied, the employer accepted two more such payments, but there was no evidence of any real intention to create a new tenancy, it was held that no tenancy was created. The land-lord may show that he accepted the rent from time to time under a mistake; or a new reversioner may show that he knew nothing of any special terms in the original lease, and, therefore, ought not to be deemed to have assented to them, so as to render himself liable to such terms, or the tenant may show any facts leading to an opposite conclusion, as that the continued occupation was only provisional and in expectation or a new lease on new terms. Where a lessee for a term held over after the expiration of a term, paying no rent but paying the tithe rent charge, it was held that a tenancy from year to year was to be implied, and where there was a letting for less than one year with an option to renew for one year and the tenant exercised the option, and on the expiration of the renewed tenancy remained in occupation, and continued to pay the rent reserved by the agreement, a tenancy from year to year was held to be created by implication of law”. In the next paragraph 726 the learned author considers the terms applicable to implied yearly tenancy: “A stipulation for two years’ notice to quit is inapplicable to a yearly tenancy so implied. So is a covenant to build, or to do such material repairs as are not usually done by tenants from year to year. But a stipulation to keep the premises in good tenantable repair during the tenancy was held applicable; as also a stipulation, in a lease not by deed for seven years, to paint at the end of the seventh year; and stipulation “to keep open the shop and use best endeavours to promote the trade of it during the tenancy”. A covenant in a lease to pay all outgoings is applicable to an implied tenancy from year to year by holding over and will oblige the tenant to pay such outgoings as street payment expenses. A covenant in a lease to pay all outgoings is applicable to an implied tenancy from year to year by holding over and will oblige the tenant to pay such outgoings as street payment expenses. A stipulation that the tenant shall be paid for tillages on the expiration of his tenancy and a proviso for re-entry on non-payment of rent or non-performance of covenants, are both applicable to an implied yearly tenancy. Such a tenant is entitled to the usual notice to quit, but at the expiration of the term mentioned in the agreement the tenancy from year to year implied upon entry under a mere agreement or void lease will cease without any notice to quit”. The question whether security for rent would be a term of the lease so as to be applicable to the implied yearly lease does not appear to have come up for consideration in the English courts. That question has arisen in courts in India but judicial opinion is conflicting. The view of the Cochin High Court has always been that a provision for a charge for rent is a term of the tenancy applicable to the tenancy by holding over. (See Ittimathu v. Chozhi & Others, 4 Select Decisions 149, Raman Valiachan v. Thomman 17 Cochin Law Reports 369, Krishnan v. Azhakan 35 Cochin Law Reports 44). In the Travancore High Court, however, the view taken has not been uniform. The earlier cases take the above and the later cases the opposite view. 26 T.L.J. 1108 Raman Menon v. Vasudeva Rao and 30 T.L.J. 610 held that security for rent was a term of the lease applicable to the implied tenancy from year to year arising on account of the tenant holding over with the assent of the landlord. 1946 T.L.R. 152 departed from this view seeking support therefor from A.I.R. 1934 Madras 458 and 11 M.L.J. 186. No reference was made to the earlier decisions of the Travancore High Court. 1948 T.L.R. 362 followed 1946 T.L.R. 152 and said at page 366: “Hariharasubramonia Iyen v. Narayana Iyen, i.e., 1946 T.L.R. 152, is the latest ruling of this Court on the subject. It is consistent with the prior rulings of this Court”. This last observation is, with great respect to the learned Judges, erroneous as is clear from the two earlier decisions aforesaid which distinctly take the other view. It is consistent with the prior rulings of this Court”. This last observation is, with great respect to the learned Judges, erroneous as is clear from the two earlier decisions aforesaid which distinctly take the other view. In Kutti Amma v. Mahadeva Menon 11 M.L.J. 186 where there was a possessory mortgage without covenant to pay interest accompanied by a verumpattomchit by the mortgagor for one year containing a clause giving the lessor a charge for the rent, the learned Judges observed: “The last clause is not a term of the lease as a lease which can be deemed to be imported with the terms on which the lessee is allowed to hold over, and moreover it is not shown that the plaintiff assented to the defendant’s remaining in possession under the terms of the pattom chit. A charge must be expressed in writing registered and cannot be raised by implication”. and granted the plaintiff, the mortgagee-lessor, a decree for sale of the mortgaged property for the principal amount of the mortgage and a simple money decree for arrears of rent for three years with interest thereon at the rate stipulated. In Mamambath Pettiyeth v. Cheria Uthalamma 16 I.C. 560 the murupat executed in connection with a kanam document did not provide for payment of interest on the mortgage money but only for payment of rent and the rent was not charged on the property and it was held referring to 11 M.L.J. 186 that only three years’ rent could be recovered. In Rama Vadhayar v. Krishnan Nair A.I.R. 1926 Madras 398 a possessory mortgagee’s claim for a charge in respect of arrears of rent for later years under a lease, Ext. B, which was only for one year, which created a charge on the equity of redemption of the properties which belonged to tarwad on whose behalf the deeds were executed by the karnavan alone, was not allowed following the aforesaid two Madras cases with the observation: “In accordance with these decisions we must hold that the plaintiff has no charge on the properties for arrears of rent. The claim for three years’ (sic) arrears cannot be enforced against defendants 5 and 6 and is not a charge on the thavazhi properties. Further, Ext. B is in excess of the karnavan’s powers under the karar, which expressly stipulated that the interest on the Rs. The claim for three years’ (sic) arrears cannot be enforced against defendants 5 and 6 and is not a charge on the thavazhi properties. Further, Ext. B is in excess of the karnavan’s powers under the karar, which expressly stipulated that the interest on the Rs. 3,000/- was to be paid out of the current income; admittedly there was no necessity for execution of Ext. B which, therefore, cannot be binding on the tarwad in any event”. (Page 399). In Gnanadesikan v. Antony Benathu Bhoopalanarayar (A.I.R. 1934 Madras 458) where a possessory mortgagee who leased the property back for two years to a mortgagor and took a registered document, Ext. E, for payment of rent securing the equity of redemption therefor it was held following 11 M.L.J. 186: “In the present case all that we can say is, that the mortgage created under Ext. E can only be enforced for the recovery of rent due for the term of two years. After the determination of that lease, when the tenancy from year to year was created, it is not possible to carry over this collateral security, which is certainly no part of the lease transaction, so as to enable the plaintiff to claim the arrears of rent for the whole of the subsequent period, as if that mortgage was also created for the rent due subsequent to the transformation of the tenancy into one from year to year”. 5. In the earliest Madras case, i.e., 11 M.L.J. 186, which is seen followed in the aforesaid later cases the observation that the last clause in the lease deed creating the charge is not a term of the lease as a lease which can be deemed to be imported with the terms of which the lessee is allowed to hold over is an obiter dictum because on the facts there was no holding over in that case as is clear from the remaining part of the sentence read above. There is no reason given why security given for rent payable under a lease cannot be a term of the lease as a lease. The rent that is fixed, the time when it is due to be paid, whether in advance, at intervals or at the end of the year or other period of lease, the liability to pay interest on overdue rent, have all been considered to be terms of the lease. The rent that is fixed, the time when it is due to be paid, whether in advance, at intervals or at the end of the year or other period of lease, the liability to pay interest on overdue rent, have all been considered to be terms of the lease. The quantum of rent would have a relation to the question whether its payment is secured. It is common knowledge that security of performance tends to lighten the obligation to be performed, for example, a loan fully secured would be available on easier terms regarding interest than one without security. Even so in the case of a lease, if payment is guaranteed the rate of rent would be lower than in a case where there is no such guarantee. As there is this integral connection between the rent and security for its payment, we are not, with respect to the learned Judges of the Madras High Court, able to accede to the proposition that security for rent is collateral to and independent of the lease and does not form part of its terms. S.116 of the Transfer of Property Act which enacts: “116. If a lease or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in S. 106”. in our judgment, lends support to our view as is clear from the words “renewed from year to year” which indicate that what is excluded from the stipulations contained in the old lease is only the longer period which is incompatible with a lease from year to year or month to month. The terms to be imported from the old into the new lease created by holding over, need not necessarily be appertenant to an yearly or monthly lease. Terms that are not inconsistent with a lease from year to year or month to month can and will be deemed to be imported. The terms to be imported from the old into the new lease created by holding over, need not necessarily be appertenant to an yearly or monthly lease. Terms that are not inconsistent with a lease from year to year or month to month can and will be deemed to be imported. The rule deducible from decided cases is that all stipulations contained in the expired lease deed will be deemed to be imported into an implied lease by holding over unless they are altogether unconnected with the transaction of lease, e.g., a covenant to purchase the reversion, or are inconsistent or incompatible with a yearly or monthly lease, e.g., a covenant fixing a period of over a year or month as the duration. A stipulation to remove trees planted by a tenant has been held to be a term applicable to a yearly lease of a tenant holding over (3 Bombay High Court Reports, page 27, A.C.). This Court held in A.I.R. 1953 T.C. 299 that a covenant concerning the mode of valuation of improvements entered into before they are made in the Travancore area where there is no prohibition against so doing as in the Cochin Tenancy Act, applies to the value of improvements effected by the tenant after the expiry of the original terms of the lease and during the period of his holding over, that is to say, the covenant would be a term of the lease importable into a yearly tenancy by holding over. 6. The principle of implied tenancy from year to year on account of the assent of the land-lord to the tenant continuing after the expiry of the period of a lease was being recognised and given effect to in India following the English Law before the enactment of the Transfer of Property Act. Sheikh Enayatoolah v. Elaheebuksh (1864 Weekly Reporter, Gap No. 42, Nocoordas v. Jewraj (1874) 12 Beng. L.R. 263, Ram Khelavan v. Soondra (1867) 7 W.R. 152, Sayaji v. Umaji (1867) 3 Bom. H.C. 27, A.C., Chaturi Singh v. Makund Lall (1881) I.L.R. 7 Cal. 710). Even payment of rent is not necessary to create a tenancy by holding over under S. 116 of the Act as it only requires the consent of the land-lord to continue the tenancy. A.I.R. 1929 Calcutta 553 Soliman Moosaji Asmal v. Jatindra Nath Mondal. 7. H.C. 27, A.C., Chaturi Singh v. Makund Lall (1881) I.L.R. 7 Cal. 710). Even payment of rent is not necessary to create a tenancy by holding over under S. 116 of the Act as it only requires the consent of the land-lord to continue the tenancy. A.I.R. 1929 Calcutta 553 Soliman Moosaji Asmal v. Jatindra Nath Mondal. 7. The impediment to take the view that the provision for a charge attaches to the rent due during the period of the holding over was as stated in 11 M.L.J. 186 that a charge must be expressed in writing registered, which is absent in the case of implied tenancy by holding over. This observation is apparently based upon the provisions of the Transfer of Property and Registration Acts. 8. A lease for a year or a smaller period, for a rent less than Rs. 100/- charged on immoveable property can be validly created without a document registered as it would not offend either of the Acts. The reasoning in 11 M.L.J. 186 would not touch such a case. A lease for a larger period not in writing registered has been held good as a lease for a year (Aziz Ahmed v. Alauddin, A.I.R. 1933 Patna 485; Alauddin Ahmad v. Aziz Ahmad 1934 Patna 369). If the security for rent be not over immovable property but say, for example, over a deposit of money or movable property made by the lessee with the lessor or other person it will not be subject to any statutory infirmity on account of the absence of a registered instrument. 9. The Transfer of Property Act was not on the statute book of the erstwhile State of Travancore nor was it on the statute book of the erstwhile State of Cochin before Cochin Act XVII of 1111 which came into force on 1.1.1112 = 16.8.1936 (See Acts and Proclamations, Vol. IV, page 355). Charges on, alienations of, or any other transactions regarding immovable property of whatever value could in the absence of the Transfer of Property Act have been created, made or entered into orally. The impediment suggested in 11 M.L.J. does not therefore exist in a place where and at a time when the Transfer of Property Act is not in force. Charges on, alienations of, or any other transactions regarding immovable property of whatever value could in the absence of the Transfer of Property Act have been created, made or entered into orally. The impediment suggested in 11 M.L.J. does not therefore exist in a place where and at a time when the Transfer of Property Act is not in force. The question in this case arises in the Travancore area and before the Transfer of Property Act was extended to this State by Central Act III of 1951 to come into force when the State Government notified to that effect and the notification was issued on 22.3.1952 bringing the Act into effect in the whole State as from 1.5.1952. (See the Statutory Rules and Notifications of Travancore-Cochin, 1952, p. 184). 10. The position under the Transfer of Property Act, even in cases where the Act requires a registered instrument to create a tenancy is not different as regards the applicability of the terms of an expired lease to the lease by implication during the period of holding over because though S. 107 of the Act provides: “A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the Provincial Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases may be made by unregistered instrument or by oral agreement without delivery of possession”. S. 116 enacts that in a case of holding over the lease is renewed from year to year. This is a statutory renewal to which S. 107 is inapplicable. S. 116 enacts that in a case of holding over the lease is renewed from year to year. This is a statutory renewal to which S. 107 is inapplicable. In our judgment the stipulation contained in an expired lease providing a security for the rent is a term of the lease within the meaning of S. 116 of the Transfer of Property Act and the landlord would be entitled to enforce that security even in respect of arrears accruing after the expiry of the original term of the lease and during the currency of a lease by implication created by holding over. We may also observe that in A.I.R. 1947 Madras 424 the two earlier cases of that High Court in 11 M.L.J. and 1934 Madras were distinguished and the provision securing rent upon immovable property in a lease for a term certain was applied to the holding over after the period on a construction of the lease deed indicating the intention of the parties to have the rent secured till the properties are returned to the landlord. We find point No. 1 against the appellant. 11. Point No. 2. The second point relates to the period of limitation for recovery of rent due during the period of the holding over independently of a charge on property. The lease during holding over is a new lease though there is no break in the tenancy from its start. The terms in the old lease are deemed to continue in the absence of a contract. Such a contract may be oral and may relate to any one or more of the terms. In respect of any matter not agreed to afresh the original terms apply. The period of limitation to enforce recovery of rent during holding over is only three years because the six year period under Art. 116 of the Limitation Act would be available only when there is a contract in writing registered. The Travancore High Court held so in 24 T.L.R. 129 and 26 T.L.R. 63. When a lease for a term certain is created by a registered instrument and there is a holding over and the tenant continues, there is an extension of the tenancy but there is no extension of the document of lease. 12. The appeal fails and is dismissed with costs. Dismissed.