JUDGMENT : 1. This is an appeal by the plaintiff against the judgment and decree dated 6.1.1971 passed by Civil Judge, Bikaner, whereby the judgment and decree dated 30.7.1969 of Munsiff, Bikaner was upheld dismissing the plaintiff's suit for arrears of rent and ejectment. 2. Briefly, the plaintiff's case is that there is a house property belonging to him described in para 1 of the plaint. The said house, excluding one ora and open land, was let out by the plaintiff to the defendant on 19.8.1965 on a monthly rent of Rs. 30/- and the defendant executed a kabuliyat in favour of the plaintiff. The tenancy is a monthly tenancy and the month of the tenancy expires on 18th of every month. The defendant did not pay any amount of rent and a sum of Rs. 510/- is due from the defendant on account of rent with effect from 19.8.1965. Thus, the defendant has committed default in payment of rent. It was further alleged that the plaintiff sent a registered notice on 22.11.1966, which was received by the defendant on 23.11.1966, whereby the defendant's tenancy was terminated with effect from the mid-night of 18.12.1966. The plaintiff prayed for a decree for a sum of Rs. 51/- on account of rent and for ejectment of the defendant from the suit premises and also for damages for use and occupation during the pendency of the suit till the delivery of possession. 3. The defendant submitted his written statement in which he traversed the averments of the plaint and stated that the owner of the house is one Laxmi Narayan in whose favour Mathura Bai executed a will of which Laxmi Narayan has obtained a probate. He denied the plaintiff's tenancy and stated that the plaintiff has no right to sue and has no locus standi, in view of the fact that Laxmi Narayan has obtained a probate. It was also denied that he received any notice and further alleged that the notice is not legal and is not issued by a competent person. An objection as to the admissibility of the kabuliyat on account of insufficiency of stamp and non-registration was raised. In para 13 of the written statement, it was averred that the defendant took the house on rent from Laxmi Narayan and he has been regularly paying rent to him. An objection as to the admissibility of the kabuliyat on account of insufficiency of stamp and non-registration was raised. In para 13 of the written statement, it was averred that the defendant took the house on rent from Laxmi Narayan and he has been regularly paying rent to him. In the end it was prayed that the plaintiff's suit be dismissed. 4. On the basis of the pleadings of the parties, the following issues were framed:- 1- D;k izfroknh fMQkYVj gS \ 2- D;k izfroknh o vksjk o [kqyh tehu NksM+dj 19-8-65 dks edku 30 :Ik;s ekgokj fdjk;s ij fy;k o dc~fy;r rgjhj o rdehy dj nh\ 3- D;k izfroknh dks gLc nQk 106 Vh-ih- ,DV fd;kA 4- D;k dcqfy;r de lVkEi ij rgjhj o rdehy dh gqbZ o ;qfuVwy gSA blfy;s vufMlfelscy bu ,sfoMsUl gS\ 5. On behalf of the plaintiff, the statements of Mangi Lal PW-1, Sarvardeen PW-2, Bhanwar Lal PW-3, Bhuda Ram PW-4 and Bishan Lal PW-5 were recorded. In rebuttal, the defendant Ram Kishan examined himself as DW-1 and produced Shiv Kishan DW-2 and Prahald DW-3. The learned Munsiff, after hearing the parties, dismissed the plaintiff's suit. The learned Munsiff decided issues Nos. 2 & 4 against the plaintiff. He however, found that the defendant executed the kabuliyat but the same is unregistered and the plaintiff did not plead any oral agreement accompanied with delivery of possession, so no tenancy was created. The alleged kabuliyat is inadmissible in evidence as the same is unregistered. In view of the findings, on issue No. 2 & 4, for issue No. 1, it was stated that it does not require any decision as tenancy is not established. While deciding issue No. 3, it was found that it is proved that the plaintiff served a notice on the defendant but as no tenancy has arisen between the parties, the question of its determination does not arise. Consequently, the plaintiff's suit was dismissed. The plaintiff then went in appeal, but the plaintiff's appeal was dismissed and the learned Civil Judge upheld the findings of the learned Munsiff on issue No. 2 & 4. Aggrieved against the judgment and decree of the learned Civil Judge, the present appeal has been filed. 6. I have heard Shri H.D. Khatri, learned counsel for the plaintiff-appellant and Shri C.D. Mundra, learned counsel for the defendant-respondent. 7. Aggrieved against the judgment and decree of the learned Civil Judge, the present appeal has been filed. 6. I have heard Shri H.D. Khatri, learned counsel for the plaintiff-appellant and Shri C.D. Mundra, learned counsel for the defendant-respondent. 7. Shri Khatri vehemently contended that the two Courts below have not properly construed the plaintiff's pleading. The plaint clearly spells out that there was an agreement of tenancy accompanied with delivery of possession and this averment gets corroborating from the recitals in the kabuliyat and is proved from the plaintiff's statement. It was also urged that it has been wrongly held by the Courts below that the kabuliyat requires registration and is inadmissible in evidence and the kabuliyat has been wrongly excluded from consideration. It was urged that the kabuliyat embodies a term that the tenant would be liable to be ejected whenever he landlord plaintiff will so desire and from this condition, it would appear that it is a tenancy at will and such a tenancy does not require registration. It was also urged that it is amply proved from the evidence on record, that the premises were let out by the plaintiff to the defendant in pursuance of oral agreement and the plaintiff inducted the defendant in the premises and the defendant executed a rent note in favour of the plaintiff. Thus, in these circumstances, the defendant is estopped from challenging the title of the plaintiff Shri Khatri, in support of his contention placed reliance on the decision of this Court in Uda v. Tej Karan, 1975 RLW 77. 8. Shri Mundra on the other hand, urged that lease can be created by a registered document or by an oral agreement accompanied with delivery of possession. Admittedly, rent note is an unregistered one and the other mode of creation of lease or tenancy is not pleaded by the plaintiff. In the absence of the necessary pleadings, the contents of rent note cannot be looked into to establish that there was an oral agreement accompanied with delivery of possession. Recitals in the rent note may be considered to be a piece of corroborating evidence but in the absence of specific plea as to creation of tenancy as a result of oral agreement accompanied with delivery of possession, the recital in the rent note can be of no avail to the plaintiff. Recitals in the rent note may be considered to be a piece of corroborating evidence but in the absence of specific plea as to creation of tenancy as a result of oral agreement accompanied with delivery of possession, the recital in the rent note can be of no avail to the plaintiff. Both the Courts have found that the tenancy has not come into existence as the rent note is an unregistered one and the other mode is not pleaded. The learned counsel for the appellant urged that the rent note requires registration and Courts below have not taken into considerable that the rent note is insufficiently stamped, so also it is inadmissible in evidence. It was also contended that from the recitals in the rent note, it cannot be found that it is a tenancy at will. It is a tenancy for indefinite term. The learned counsel also referred to some cases in support of his contentions. 9. I have given my earnest consideration to the contentions advanced before me by both the sides. The first question which arises for consideration is as to how the averments in the plaint are to be constructed. Can it be found that the plaint spells out creation of tenancy by oral agreement accompanied with delivery of possession. It may be stated that the parties pleadings are to be construed not liberty but it should be construed in its spirit. The plaintiff in para 2 of the plaint averred that the defendant took the suit premises on a monthly rent of Rs. 30/- on 19.8.1965, after having stated so the averment further proceeds that in this connection, the defendant got the rent note written and executed the same, then handed it over to the plaintiff. It is true that the fact of oral agreement as such and delivery of possession as such thereafter, has not been specifically stated. Further, it may be mentioned that the plaintiff has not averred that the defendant was inducted as a tenant through a rent note. Rather, from whatever is pleaded in para 2, it can easily be inferred that first there was an agreement between the parties and after having entered into an agreement, the defendant executed a rent note in favour of the plaintiff. Rather, from whatever is pleaded in para 2, it can easily be inferred that first there was an agreement between the parties and after having entered into an agreement, the defendant executed a rent note in favour of the plaintiff. It was in pursuance of agreement that rent note came to be written and it was in pursuance of the agreement that the defendant was put into possession of the property. This construction of para 2 appears to be legitimate and gets full support from the recital in the rent note Ex. 1, wherein the commencing clause itself, it is mentioned that the defendant has taken the premises in pursuance of an oral agreement on the terms and conditions hereinafter stated. Thus, from the recital in Ex. 1, it can be found that there was an oral agreement between the parties with regard to creation of tenancy. Taking of house property on rent at a specific amount of rent, would only mean that there was an agreement between the parties and the tenant was put into possession of the same. Such is the clear averment in para 2 of the plaint. Along with this recital, if now the plaintiff's statement is taken into consideration, it would be clear that after an oral agreement entered into between the parties, at the house of the plaintiff, the parties then proceeded to Court to get the note written. The plaintiff in his statement has deposed that possession over whole of the house property except one oral and open land was delivered to the defendant and in cross-examination he deposed that the rent note was got written in the Court though the agreement for tenancy was reached at the house and there was none present at the time except the parties. Both the Courts have found that there was no creation of tenancy for the reason that the rent note was an unregistered one and the plaintiff did not plead oral tenancy accompanied with delivery of possession, so on that score non-suited the plaintiff. In my opinion, the view which has been taken by the Courts below on the construction of the plaint, is untenable. Uda Ram's case (supra) referred to by Shri Khatri fully supports his contention. In my opinion, the view which has been taken by the Courts below on the construction of the plaint, is untenable. Uda Ram's case (supra) referred to by Shri Khatri fully supports his contention. In Uda Ram's case, the plaintiff's case as set out in the plaint was that nohra in question was rented out by Kishan Lal, the father of the plaintiff, to the appellant Uda Ram on a yearly rent of Rs. 40/- by a rent note Ex. 1 executed by the defendant in favour of Kishan Lal. After termination of tenancy, the plaintiff instituted a suit for ejectment on the grounds of default and personal necessity and denial of plaintiff's title by the defendant. The defendant denied the relations of landlord and tenant as well as the execution of the rent note and asserted his own title to the nohra and he also challenged the admissibility of the rent note on the ground it was not properly stamped and had not been registered. On behalf of the defendant-appellant a contention was raised that the rent note cannot be made a basis of the suit and no oral agreement accompanied by delivery of possession had been pleaded and proved by the plaintiff and it was submitted that a rent note may be used only as a corroborating piece of evidence and not as a basis of the suit. This contention was repelled. His Lordships C.M. Lodha, J. (as he then was) considered the observation made in the case Banarsi Lal v. Shri Bhagwan, 1955 RLW 129, cited on behalf of the defendant-appellant that no undue stress should be laid on construction of pleadings in a suit like the present one when the defendant has fair notice of the case, which has been put up by the plaintiff. These observations were also taken notice of that the suit should simply be based on an unregistered rent note because it can be used only in corroboration of the said oral agreement but the necessity of such a formality should not be over-stressed and that ordinarily a rent note is executed after an oral agreement about the lease between the parties and in accordance with this presumption, the learned judge without any specific pleadings on the point held that in that case the rent note was simultaneously executed after an oral agreement. His Lordship Lodha, J. also placed reliance on the decision of the Allahabad High Court in Shiv Dulare Lal Sha v. Anant Ram, AIR 1954 All. 475 . His Lordships Lodha, J. adverted to another aspect of the case, after finding that the rent note was admissible in evidence, that the admission or acknowledgement made therein by the tenant that he is in occupation of the premises in the capacity of tenant, is certainly a good type of evidence and the plaintiff would be perfectly within his rights to use such an admission and acknowledgement to establish the case of tenancy between him and the defendant. For this view support was taken from the following observations in the Full Bench decision of the Lahore High Court in Mohan Lal v. Ganda Singh, AIR 1943 Lahore 127 :- "A rent deed (not compulsory registrable under the Registration Act) executed by a tenant in favour of a landlord, if not registered, van be relied upon to establish the relationship existing between the parties. For, it contains an admission of an acknowledgement by the person attempted to be made liable and should be the very best evidence that one can possibly have as to the oral agreement of a lease and a Court is not prevented from looking into it for this purpose". This aspect of the case would depend on the question of admissibility of the rent note in evidence, which I shall be dealing with separately but in case kabuliyat or rent note is found to admissible in evidence, then in that circumstances, this aspect of the case will certainly help the plaintiff can avail of the defendant's admission in the rent note. Apart from this aspect of the case, in my opinion, from the nature of the averments in the plaint, a plea of tenancy based on oral agreement accompanied with delivery of possession arises and it gets full support by the recital in the rent note and further the same is proved from the statement of the plaintiff. Thus, the view, which has been taken by the Courts below cannot be sustained. 10. I may now proceed to consider as to whether the rent note Ex. 1 in question requires registration or not. Ex. 1 does not specify any definite period of tenancy, it only says that the defendant has taken the house property on rent for Rs. Thus, the view, which has been taken by the Courts below cannot be sustained. 10. I may now proceed to consider as to whether the rent note Ex. 1 in question requires registration or not. Ex. 1 does not specify any definite period of tenancy, it only says that the defendant has taken the house property on rent for Rs. 30/- per month and he will pay rent every month commencing from 19.8.1965 and month will expire on the succeeding 18th of every month but simultaneously, there is a stipulation in the rent note that when the landlord will like the property to be vacated, the defendant will vacate the same. It would appear that such a lease cannot be considered to be a lease from year to year or for any term exceeding one year or a lease reserving an yearly rent and as such does not require to be made by a registered instrument. According to Shri Khatri, it is a tenancy at will and such a tenancy does not require registration as it is not covered under Section 17 of the Registration Act or Section 107 of the Transfer of Property Act. Such a tenancy has been held to be a tenancy at will in Uda Ram's case (supra). In Uda Ram's case (supra), the rent agreement upon was an yearly rent of Rs. 40/-, there was no duration of the lease fixed in the rent note, but there was a condition that the defendant will have to vacate the premises whenever called upon by the landlord to so . It was observed that such a tenancy need not be in writing and registered. Reliance was placed on Kushal Raj v. Mst. Mooli, ILR 1963, 13 Raj. 980, wherein it was held that a tenancy like the present where the tenant has agreed to vacate the premises whenever the landlord should desire him to do so, is a tenancy at will and the mere fact that the rent note provided for payment of rent per annum does not and cannot make any material difference. It was further, observed in that case, that a recital of annual rate in a lease deed did not constitute it as one reserving a yearly rent. In Uda Ram's case (supra), the rent note Ex. It was further, observed in that case, that a recital of annual rate in a lease deed did not constitute it as one reserving a yearly rent. In Uda Ram's case (supra), the rent note Ex. 1 was held to be admissible in evidence and it was observed that no registered lease deed was required in the case. In the present case, only monthly rent has been agreed upon with the stipulation that the defendant will vacate the premises whenever the landlord desires him to do so. Such a condition in my opinion, would give rise to a tenancy at will and it is not necessary that for creation of tenancy at will, such an option should also be available to the lessee. 11. Nature of tenancy at will has been explained in Halsbury's Laws of England, 3rd Edition, Vol. 23 on page 505 under para 1150. A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable, at the will of either landlord or tenant. 12. The expression "tenancy at will" has been explained in Foa's General Law of Landlord and Tenant, 10th Edition, under Section 5:- "Tenancies at will are tenancies which endure at the will of the parties only, i.e., at the will of both --- This, however, is only where no term is fixed in the demise between the parties, except the will of either or both". Tenancy at will have been discussed in Woodfall's Law of Landlord and tenant on pages 280 and 281:- "A tenancy at will is where lands or tenements are let by one man to another, to hold at the will of the lessor : in this case the lessee is called tenant at will, because he has no certain or sure estates : for the lessor may put him out at any time he pleases. Either party may at any time determined a strict tenancy at will although expressed to be held at the will of the lessor only, and the landlord may determine it by demand of possession or otherwise without a previous formal notice". 13. It would appear from what is said above, that a tenancy at will is determinable at the will of either of the parties or both. 13. It would appear from what is said above, that a tenancy at will is determinable at the will of either of the parties or both. In the instant case, such an option is available to the lessor as stipulated in the rent note and he can call upon the lessee to vacate the premises and the lessee is under an obligation to vacate the same. To give rise to a tenancy at will, it is not necessary that such an option should be available to both the parties. Had there been any requirement of fixed period of notice to determine the tenancy, a question may arise as to whether the nature of tenancy is at will or not but I need not examine this question in the present case, as in the rent note Ex. 1, there is no such stipulation that fixed period of notice is required to be given for determination of the tenancy. Thus, I hold that the nature of tenancy in the present case is a tenancy at will and the rent note Ex. 1 does not require registration. 14. Shri Mundra referred to a decision Banwari Lal Sharma v. Ram Swaroop, 1974 WLN 192 . In this case the document Ex. 1 was held to be a lease within the meaning of sections 105 and 107 of the Transfer of Property Act and it required registration and it was observed that unregistered document of lease is inadmissible in evidence and could no be looked into for arriving at a finding regarding the existence of relationship of landlord and tenant between the parties to the suit. 15. I need not discuss the other cases, cited by Shri Mundra as the same are clearly distinguishable. The present case is fully covered by the decision of this Court in Uda Ram's case (supra). 16. When once it is established that it was the plaintiff who inducted the defendant in the suit premises, then it is not open to the defendant during the continuance of the tenancy tot deny the title of the plaintiff landlord to the house property at the beginning of the tenancy and under Section 116 of the Evidence Act, the defendant is estopped to deny the plaintiff's title. 17. In view of my finding as aforesaid, the judgment and decree of the Court below cannot be sustained and deserve to be set aside. 18. 17. In view of my finding as aforesaid, the judgment and decree of the Court below cannot be sustained and deserve to be set aside. 18. Shri Mundra, further contended that the rent note Ex. 1 is still inadmissible in evidence as it is insufficiently stamped and this aspect of the case has not been considered by both the Courts, though there was a specific issue. He submitted that no doubt Ex. 1 has been tendered into evidence and has been admitted but on that basis, it cannot be said that the question cannot be gone into now under Section 36 of the Stamp Act. In this connection, reliance was placed by him on a decision Ram Rattan (dead) by legal representatives v. Bajrang Lal and others, AIR 1978 SC 1393 . It is true that the question of insufficiency of stamp was not looked into by both the Courts and the document was admitted into evidence but in view of Ram Rattan's decision, it cannot be said that the objection may be considered to have been waived. I do not agree with the contention of the learned counsel for the appellant that the objection should be deemed to have been waived as the same was not raised before the Courts below. When there was an issue, it ought to have been decided and in case, it is found that the document is sufficiently stamped, the deficit duty and penalty should have been asked to be deposited by the plaintiff. Section 35 of the Stamp Act prohibits the admission of insufficiently stamped document in evidence till full duty and penalty is paid. The question arises as to whether the rent note Ex. 1 is insufficiently stamped. Shri Khatri, contended that it is simply an agreement and it is executed on stamps worth Rs. 40/- paise. Shri Mundra submitted that it is a lease and not an agreement and it is a lease for an indefinite period so the same duty is leviable like that of a conveyance. The kabuliyat is to be stamped like a conveyance and it is insufficiently stamped. I agree with the contention of Shri Mundra that the document in question is recovered under the definition of lease as denied in Section 16 of the stamp Act. According to the definition, lease includes also a kabuliyat. The kabuliyat is to be stamped like a conveyance and it is insufficiently stamped. I agree with the contention of Shri Mundra that the document in question is recovered under the definition of lease as denied in Section 16 of the stamp Act. According to the definition, lease includes also a kabuliyat. In view of this clear definition, it cannot be said that the document in question is simply an agreement. On perusal of the kabuliyat, it would appear that there is no stipulation regarding any period of lease, so it is a lease which does not purport to be for any definite term. Such a lease is required to be stamped like a conveyance for a consideration equal to the amount or value of the average annual rent would be paid or delivered for the first 10 years if the lease continues so long. The average annual rent would be a sum of Rs. 360/- and as such, it should have been stamped with a stamp of Rs. 12/-. Thus, there is deficiency of Rs. 8/- and 60/- paise. For admission of such a document in evidence, ten times penalty and deficient stamp duty is required to be paid under Section 5 of the Stamp Act. But the document having already been admitted in evidence and the question of the document being insufficiently stamped does not appear to have been argued before the Courts below, in my opinion, the plaintiff cannot be non-suited on the basis that the document is insufficiently stamped and so be excluded from consideration. In Ram Rattan's case (supra), their Lordships of the Supreme Court observed that "while holding that the document Ex. 1 would be inadmissible in evidence as it is not duly stamped, we would not decline to take into consideration because the trial Court is bound to impound the document and deal with it according to law". In the light of these observations, in my opinion, the rent note Ex. 1 cannot be excluded from consideration and it would be the duty of the trial Court to impound the rent note and deal with the same according to law. 19. Now the question arises as to whether the plaintiff is entitled to a decree for rent claimed by him. 1 cannot be excluded from consideration and it would be the duty of the trial Court to impound the rent note and deal with the same according to law. 19. Now the question arises as to whether the plaintiff is entitled to a decree for rent claimed by him. It is true that the trial Court has not dealt with this issue and has simply observed that it is not necessarily to go into this question in view of the fact that tenancy is not established between the parties. In my opinion, on that account, the case need not be sent back for deciding the issue relating to non-payment of rent, in view of the fact that admittedly it is not the case of the defendant that he paid any amount of rent to the plaintiff. When admittedly no rent has been paid the plaintiff is entitled to a decree in respect of the amount of rent claimed by him. Thus, the plaintiff's suit for rent as well as for ejectment deserves to be decreed and the plaintiff is further entitled to mense profits at the rate of Rs. 30/- per month till he is put into possession of the property on payment of Court fees. Under Section 108 clause (a) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. 20. In view of that I have discussed above, the plaintiff's appeal is allowed and his suit is decreed as under:- (A) The plaintiff shall be entitled to recover a sum of Rs. 480/- on account of rent for the period commencing from 19.8.1965 to 18.12.1966 from the defendant. (B) The defendant shall be evicted from the suit premises and the plaintiff be put into possession of the same. (C) The plaintiff will further be entitled to recover mense profits at the rate of Rs. 30/- per month from 19.12.1966 till the date of delivery of possession to the plaintiff on payment of requisite Court fees. (D) The plaintiff shall further be entitled to recover costs of all the Courts from the defendant. Appeal allowed.