1. This appeal arises out of a suit for specific performance brought by the appellant, who is the Raja of Vizianagaram represented by the Manager under the Court of Wards, against the respondent, the Maharajah of Jeypore. The agreement which is sought to be enforced is a compromise of two alleged disputes regarding forest areas, one relating to the Gudepa forest in the plains and the other relating to the Samidha forest in the Agency. The agreement in substance provides that the appellant shall acknowledge the title of the respondent to the area in dispute in the Samidha forest and shall be given a permanent lease of that forest including the portions which have always been admittedly the property of the respondent, while as to the Gudepa forest the respondent is to acknowledge the title of the appellant. The suit has been dismissed on various grounds which will be enumerated hereafter.
2. The dispute has a long history which need only be summarised briefly. In the disputed areas the boundary between the estates of Vizianagaram and Madgole runs through forest. The precise location of that boundary was in dispute at the end of the last century. In 1899 Mr. Hatchell of the Madras Survey Department took up the dispute regarding the Samidha forest and fixed a boundary which is alleged to have given some six square miles hitherto treated as the property of Vizianagarain to the estate of Madgole. In 1901 there was a survey of the boundary in the Gudepa reserve which resulted in the recognition of the title of Vizianagaram estate to some 750 acres of scrub jungle in the Gudepa area claimed by Madgole. We are mainly concerned in the present appeal with the Samidha block. It is fairly clear that though no appeal was preferred against Mr. Hatchell's decision, it was not accepted by the Vizianagaram estate. The documents exhibited show that the estate officials continued to assert the rights of the estate in the portion allotted to Madgole at the survey and it would also appear that the inhabitants of the villages affected by this decision resented their inclusion in the Madgole estate. In 1915 the Madgole estate was under the control of the Court of Wards and the Vizianagaram estate was being administered by Mr. Fowler as trustee under a settlement made by the late proprietor. At this time there were constant complaints from the Vizianagaram officials that the Madgole forest officers were issuing permits within the Vizianagaram boundary and that under cover of these permits the licensees were extracting timber from areas belonging to the Vizianagaram estate. It was also found that the administration of the Madgole forests adjacent to the Samidha forest was attended with difficulties owing to the fact that the only communications with those forests lay through the Vizianagaram estate. In those circumstances negotiations started between the Collector representing the Court of Wards which had charge of the Madgole estate and Mr. Fowler representing the Vizianagaram estate for a lease of the Madgole forests in the Samidha vicinity to the Vizianagaram estate. This lease appears to have been suggested as a counter proposal to the claim by Vizianagaram that the Madgole permit stations should be located outside the Vizianagaram boundary in order to prevent illicit practices. In 1916 the negotiations resulted in a definite proposal by the trustee of the Vizianagaram estate for a lease of the right to collect royalties on forest produce from the Madgole forests passing through the Samidha valley.
3. This correspondence seems to have led to the resuscitation of the dispute regarding the location of the boundary between the two estates in this area and in January 1917 the Collector issued an order, Ex.YYYYY-7 under the Survey and Boundaries Act stating that a dispute had arisen between the two estates regarding this boundary and referring the dispute under Section 22 (a), Survey and Boundaries Act, to the decision of the local Deputy Tahsildar. In August 1918, the Sub-Collector, Narasapatam, informed the Collector that there was every prospect of an amicable settlement of the dispute regarding the boundary and in consequence thereof the proceedings of the 'Deputy Tahsildar were adjourned sine die. In October 1918, under Ex. YYYYY the Collector reported to the Court of Wards that there was a dispute between the two estates, firstly, regarding the Samidha forest in which the Madgole estate claimed the boundary as fixed by Mr. Hatchell in 1899 and Vizianagaram contended that a large block included by Mr. Hatchell within the Madgole estate was really the property of Vizianagaram, and, secondly, with reference to the Gudepa forest in which Vizianagaram was contending for a boundary as fixed in the survey whereas Madgole was claiming a right to possession of a considerable area excluded from its limits in that survey. The Collector expresses the opinion that the two disputes would involve a costly litigation unless an amicable settlement could be reached and he submits for approval a general scheme of compromise whereunder the Madgole estate will admit the title of Vizianagaram to the whole of the Gudepa reserve surveyed as part of this estate in 1901, the Vizianagaram estate would withdraw its contentions that the title by the Madgole estate based on the 1899 survey was barred by adverse possession and would admit the title of the Madgole estate to the disputed area, in consideration of the Madgole estate granting a permanent lease not only of the disputed area, but also of the adjacent Madgole forests, on a yearly rent to be decided by the District Collector and the trustee in consultation with each other, but to be based on the average of the forest receipts for the past five years. The lease was to be subject to a condition of good forestry and the right of the Court of Wards to depute a senior forest officer to make regular inspections,
4. It will be noted that at this stage there was no very definite understanding as to the basis upon which rent should be calculated except that it would bear some relation to the five years' receipts. There was correspondence arising out of this proposal, the Court of Wards asking for details regarding the extent of forest involved and expressing a doubt regarding its power to grant a permanent lease. In the report of the Collector dated 28th January 1919, the extent of the disputed area in the Samidha forest is given as 111/2 square miles. A good deal of emphasis has been laid in the lower Court on the increase in this area, when compared with the six square miles apparently in dispute at the time of Mr. Hatchell's survey. The learned Subordinate Judge has even gone so far as to suggest that the area in dispute in the Samidha forest was deliberately exaggerated in order to make it appear that the arrangement was beneficial to the Madgole estate under the administration of the Court of Wards. This is a very serious allegation to make against responsible officers of the Government who had no interest in the dispute other than their anxiety to improve the administration of the two estates and we have been unable to find any basis for the allegation. The only thing that appears is that the estimated area of the disputed portion in 1918 was nearly double the area alleged to have been wrongly assigned to Madgole in 1899; but it does appear that in the interval between 1899 and 1919 the Vizianagaram estate had been exercising alleged rights in the forests situated near the boundary of the two estates without much regard to the decision of 1899 and that Vizianagaram had rightly or wrongly been claiming a right by adverse possession to a very considerable area. That area was estimated by responsible officers on both sides at 1112 square miles in 1918. It seems to us preposterous to suggest merely because of the difference between the area claimed by the Vizianagaram estate in 1918 and the area disallowed by Vizianagaram in 1899 that the Collector representing not Vizianagaram but Madgole had deliberately inflated the claim of Vizianagaram in order to make his proposals for a compromise more acceptable to the Court of Wards.
5. The Court of Wards took the opinion of the Advocate-General on the question of its power to give a perpetual lease and as a result of further correspondence with the Collector an. order was issued, Ex. CLXI (r) dated 12th October 1920, in which the Court of Wards approved, the suggestion that the agreement should contain a clause that the compromise was for the advantage of the Wards and for the benefit of the estate and a provision that the rent should be subject to revision every ten years and; pointed out that nothing had yet been decided as to the rent and directed that the Collector was to settle with the trustee how the rent was to be calculated, if on net receipts, the principle on which the net amount was to be determined and the proportion of the net receipts to be paid as rent. All these points were to be settled and actually embodied in, the deed of compromise and the final arrangement reported to the Court for approval. As a result of this order there was correspondence between the Collector representing the Court of Wards and the trustee of the Vizianagaram estate. In Ex. ZZ dated 1st December 1920 the trustee proposed a method of calculating the net receipts after deducting expenses, and in dealing with the question of proportion of the net income to be fixed as rent, the trustee observed that the total area was about 201/2 square miles of which 121/2 square miles was at present under the enjoyment of the Vizianagaram but to be surrendered to Madgole. On this area therefore a nominal rent was, reasonable whereas for the rest of the area, 8 square miles, it is stated that Madgole was entitled to levy 'full rent.' It was therefore suggested as equitable that for the whole of the area the proportion of the net receipts to be paid as rent should not exceed one half; and the important suggestion is made that the rent for the first 'decade should be fixed after the forests had been under the management of Vizianagaram for one year, subsequent rent to be revised every ten years. The reason for this suggestion is obviously the difficulty of arriving at a correct figure of net receipts until the whole block had been under a single management for a sufficiently long period. Great emphasis has been laid on behalf of the respondent on this letter, the suggestion being that if the figure of 121/2 square miles in the possession of Vizianagaram is excessive, the whole basis upon which the rent was fixed will be destroyed; but as already observed, we are not convinced that there has been any substantial exaggeration of the area actually claimed by Vizianagaram at the time of the dispute.
6. On 19th February 1921, the Collector submitted to the Court of Wards a draft agreement which embodied these suggestions made by the trustee of the Vizianagaram estate and also proposed the acceptance of the trustee's further suggestion that as a preliminary to the lease there should be a survey of the blocks leased out, the cost of the survey to be apportioned between the two estates. This draft is the final draft which it is proposed in the plaint to enforce. Besides the provisions originally suggested regarding the admissions and withdrawals to be made by the two estates and the grant of a permanent lease of the Madgole forests and the disputed portion in the Samidha neighbourhood, it was provided that the rent to be paid by the Vizianagaram estates shall be revised periodically once in ten years and in such revisions the annual rent fixed shall be one half of the annual net receipts daring the preceding ten years and the manner in which the net receipts should be calculated was specified. As to the first ten years, the only provision was that the rent to be paid shall be fixed in the first instance by the Collector and the trustee; but it is clear from the correspondence that the understanding between the parties was that for the first ten years' period also, the rent should be one half of the net proceeds and should be fixed in the second year on the basis of the first year's receipts. This is shown by the letters, Ex.ZZ dated 1st December 1920, Ex.AAA dated 26th January 1921, Ex. NN-1 dated 29th January 1921 and Ex. 00 dated 12th February 1921. Under this draft agreement therefore the only substantial point still to be settled was the date of the commencement of the lease. As to this point, it is clear that the understanding was that no lease should be given until after the survey had been completed. The question whether there was any understanding regarding the date of the commencement of the lease thereafter is a matter which will be discussed separately.
7. When this draft agreement arrived in the office of the Court of Wards, it was pointed out that the Court of Wards had ceased to have jurisdiction over the agency tracts within which the whole of the forest, except for the Gudepa area, was situated. This was the result of the constitution of the Agency Division on 6th November 1920 and the notification making the Agency Commissioner to be the Court of Wards for the estates situated within the Agency Division. The Court of Wards, Madras, therefore, issued proceedings, Exhibit Yyyyy-14 dated 7th June 1921 referring to Rule 28 of the Agency Rules and holding that it was the Agency Commissioner that should pass orders in the matter. The whole of the file relating to this agreement was therefore transmitted to the Agency Commissioner. On 23rd July 1921, the Agency Commissioner having received the papers from the Court of Wards, Madras, sent a letter, Ex. CCC to the trustee of the Vizianagaram estate which runs as follows:
As the disputed plots lie in the agency tracts, the matter under reference has been referred to me for final decision and disposal... I am prepared to execute an agreement on the lines of the draft sent with your letter referred to, the details of which are being examined. I agree also to the boundaries of the block to be leased to Vizianagaram being surveyed by the Government survey party, and to the resulting plans forming part of the agreement and lease. Will you arrange for the survey to be made as soon as possible and let me know the date when it will begin? The Madgole estate will bear half the costs of the survey.
8. The letter referred to by the Agency Commissioner is Ex. 00 dated 12th February 1921, in which the trustee makes his final proposal to the Collector. This letter from the Agency Commissioner, Ex. CCC, is relied on by the appellant as constituting a final acceptance by the Agency Commissioner as Court of Wards for the Madgole estate of the proposal contained in the draft agreement. It is contended for the respondent that the words 'the details of which are being examined' imply a reservation and that therefore the acceptance cannot be treated as unconditional. We are unable to accept this contention. It seems to us that the Agency Commissioner gave an unconditional acceptance of the terms set forth in the draft to him. The examination of details by the Agency Commissioner may well denote no more than the consideration of the administrative arrangements necessary to bring the agreement to fruition. It seems to us therefore that there was in July 1921 a definite offer and acceptance embodying all the terms necessary to make a concluded bargain, except that the actual sum payable as rent for the first ten years was left to be calculated by the two officers concerned and this provision was accepted on behalf of the Madgole estate by the Agency Commissioner acting as the Court of Wards; that is to say, the Agency Commissioner considered it for the benefit of the Madgole estate that a lease should be given on a rent based on half the net proceeds, that the net proceeds should be calculated in the way laid down in the schedule to the draft agreement and should be revised each ten years on the basis of the previous ten years figure and that the Collector and the trustee should in consultation with each other calculate on the agreed basis the sum payable as rent for the first ten years with reference to the first year's receipts.
9. After this stage was reached, nothing much happened for a considerable period except preparations for survey. It was of course necessary to clear the forest on the boundary line as a preliminary to the demarcation. There was trouble with the local inhabitants and delay in getting this work done. It was however eventually completed and the survey started. Meanwhile, in October 1928, the Agency Division was abolished and the Madgole estate came once more under the supervision of the Court of Wards in Madras. In 1926 a new Collector came into office and took up the question of the fixation of the rent of the first period. He suggested that it was necessary for the Madgole estate to have some sort of check over the accounts of the Vizianagaram estate on the basis of which future rents were to be fixed and he suggested that the rent for the first year should be fixed at a cash figure of Rs. 1650 and a revision should be made in the second year. The Collector's letter concludes 'please state whether you approve the above conditions and if so the final draft agreement may be sent to me embodying them.' By this time the trust in respect of the Vizianagaram estate had ceased to operate and the Raja himself replied to the Collector in Ex. WWWW, dated 15th May 1926, pointing out that it had been agreed in Ex. 00 dated 12th February 1921 that the rent was to be fixed on the basis of the figures of the first year's occupation and that thereafter there should be a decennial revision and he pointed out also that the proposal for a cash rent in the first year and a revision on the basis of the figures in the second year was not in accordance with the terms already decided on. He. accepted as reasonable the suggestion that monthly accounts of the forest receipts should be sent to the Madgole Range Officer, but declined to accept the suggestion that this officer should have a right to check the accounts of the Vizianagaram officials. If necessary the District Forest Officer might inspect the permit stations on behalf of the Madgole estate. To this the Collector replied in Ex. WWWW-1 dated 5th June 1926 agreeing to the Raja's suggestion that the rent for the first period should be fixed in the second year's occupation and that this figure should be subject to decennial revision. He also agreed to drop the proposal for having the Vizianagaram accounts inspected by the Madgole Range Officer.
10. Now after this interchange of letters there was no longer anything of substance to be settled regarding the lease. The only point as yet outstanding, viz., the way in which the Vizianagaram accounts were to be checked on behalf of Madgole, was settled. They were to be checked only by the transmission of monthly statements to the Madgole office. It has been suggested that this last stage of the agreement cannot bind the Madgole estate because there is no evidence that it received the approval of the Court of Wards. It is however really a matter of detail. The Court of Wards represented by the Agency Commissioner had already approved of the basic proposal regarding the fixation of rent and had already approved of the suggestion that the calculation of rent for the first ten years was to be worked out in agreement by the representatives of the two estates. It does not appear that any further sanction by the Court of Wards was necessary to bind the estate with the agreement taken as a whole.
11. The survey was not actually completed till the end of 1928. By this time the Court of Wards had ceased to have control of the Madgole estate. The Ranis of Madgole estate having surrendered their interest to the Maharaja of Jeypore, the respondent here, the latter had become the proprietor of the estate. In March 1929 the Dewan of Vizianagaram wrote Ex. 25 to the Dewan of Jeypore reporting the completion of the survey and the receipt of the maps and asking for arrangements to be made for the execution of the agreement and delivery of the forest to the Vizianagaram officials. On this it would appear that the Dewan of Jeypore called for reports from his subordinates, bat no action was taken either to complete or to repudiate the agreement in spite of reminders from the Vizianagaram estate. The plaint alleges that the Vizianagaram estate had no definite knowledge before 31st December 1933 that the defendant had no intention of performing the contract. It would appear that a good deal of the delay in coming to a decision on the part of Jeypore was due to the absence of the late Maharaja from head-quarters and his death in 1931, but no definite action was taken on behalf of the Jeypore estate even when a registered notice was sent, Ex. TTTT dated 25th November 1938 threatening a suit if no final reply was received before 31st December 1933.
12. The first question to be decided in this appeal is whether there was a concluded contract. It has been contended by the learned Advocate. General on behalf of the respondent that there was no binding agreement, firstly as to the amount of rent, and secondly, as to the date of the commencement of the lease, and that in the absence of certainty on these two points the contract cannot be enforced. The learned Advocate. General has relied upon the undoubted proposition that a mere agreement to agree cannot constitute a contract. We have however indicated our opinion that Ex. CCC dated 23rd July 1921 constitutes a definite acceptance on behalf of the Court of Wards of all the essential provisions of the agreement, which provisions provided for the definite fixation of the rent on an agreed basis. The ratio of half the net proceeds was undoubtedly accepted for the whole of the term of the lease. The basis on which the rent for the first ten years was to be calculated and also the basis of the decennial revisions were covered by the agreement. Though the actual figure of the rent was not yet determined, there was no longer any uncertainty regarding the way in which it should be fixed throughout the lease.
13. The learned Advocate-General has relied on the decision in May and Butcher, Ltd. v. The King (1934) 2 K.B. 17. That was a case in which the parties agreed to the sale of goods at a price to be subsequently fixed between the parties, any dispute to be referred to arbitration. It was held that there was no concluded contract between the parties, for an essential part of the contract was left undetermined and it was pointed out that the arbitration clause had no operation until there was an agreement and there was no agreement until the parties had at some future date fixed the price. It seems to us however that the correspondence of 1926 already referred to must be read as part of the contract between the parties, and that after the letter Ex. WWWW-1 wherein the Collector finally agreed to the method of checking the Vizianagaram accounts there was no longer any uncertainty as to any matter relating to the lease except the actual date on which it should begin. The learned Advocate-General argues that an agreement to lease which does not fix the date on which the lease is to begin cannot be enforced. This argument is based on the rule in Marshall v. Berridge (1882) 19 Ch. D. 233 where the Court of appeal held that in order to have a contract which would satisfy the Statute of Frauds it is necessary to find within the four corners of the agreement, the date from which the contemplated lease shall begin and that if the contract is defective in this respect there is no enforceable contract and specific performance cannot be granted. In Giribala Dasi v. Kali Das Bhanja A.I.R. 1921 P.C. 71, their Lordships of the Privy Council state:
It is elementary that specific performance oil an Agreement to grant a lease cannot be decreed unless that agreement either expressly or impliedly to be granted fixes the date from which the term is to run.
and on the peculiar facts of that case where-under the agreement provided for the execution of a permanent lease 'hereafter' their Lordships held, differing from the High Court, that the correspondence between the parties did not indicate an intention that the lease should begin from the date of the agreement as was contended and that therefore the date of the commencement was left uncertain and the lease could not be enforced. In that case their Lordships were dealing with very special facts and no reference was made to the statutory rule embodied in Section 110, T. P. Act, which lays down that 'where no day of commencement is named, the time so limited begins from the making of the lease.'
14. The Privy Council had to deal with another case, Ikramull Huq v. Wilkie (1907) 33 Cal. 893, where the parties agreed in a series of letters that the lease should be executed shortly of certain properties of which the lessor was to get possession from the tenants and construct a godown for the occupation of the lessee in the course of three or four months. There was some delay in getting possession of the land. When it was obtained the lessee was asked whether he wanted the building constructed according to the original plan or had any alterations to suggest and the lessor said that he was prepared to finish the building within four months. Thereupon the lessee repudiated and justified the repudiation on the ground of the delay on the part of the lessor in not putting himself in a position to complete the transaction. Their Lordships held on the facts of that case that the period within which the building were to be ready was not an essential part of the eon-tract and the contemplation of both parties was that everything should be done without any unreasonable delay. In the circumstances they held that there was a completed contract of which specific performance will be granted. That was clearly a case in which the agreement between the parties did not contain any fixed date for the commencement of the lease. Although their Lordships did not expressly consider the effect of Section 110, T. P. Act, they do hold that the agreement contemplates the execution of the lease within a reasonable period and by implication it must be inferred that the lease was to run from the date of its execution. The circumstances of that case bear some resemblance to those of the present case. Here too the original agreement contemplates survey operations as a preliminary to the execution of the lease. The precise date on which those survey operations would be concluded was not known. The delay in their completion was not due to the default of either party. It is natural to infer that the parties contemplated the execution of the lease within a reasonable period after the completion of preparatory work. The delay after that date was due partly to the death of the Maharaja of Jeypore and partly to the indecision of his successor; but in the absence of any other date being contemplated, it seems to us reasonable to infer from the circumstances that the parties made their agreement in the light of the statutory provisions of Section 110, T. P. Act, and that it was understood that the lease was to run from the date on which it was executed. A similar view has been taken by the Calcutta High Court in Kailash Chandra v. Bejoy Kanta Lahiri A.I.R. 1919 Cal. 837 where the learned Judges rely upon the decision of the Privy Council just quoted and hold that there was a concluded agreement in the absence of an express stipulation for the date of the commencement of the lease and that it is legitimate to read into the agreement the statutory provisions of Section 110, T. P. Act. We hold that the agreement in the present ease is certain and definite both as to the rent and as to the date from which the lease is to commence and it is not unenforceable for uncertainty in either of these particulars.
15. The next question is whether the permanent lease contemplated in this agreement was within the power of the Court of Wards. We have already indicated our opinion that the final decision of the parties regarding the manner of the fixation of the net profits for the purpose of calculating the rent for the first ten years must be deemed to have been made with the authority of the Court of Wards, having regard to the approval of the draft agreement by the Agency Commissioner. At the time when the agreement was concluded the Madras Impartible Estates Land Act had not been extended to the Agency districts. It was however extended by a notification dated 27th November 1928 and we may take it that the agreement could not now be enforced if it is deemed to offend against the provisions of that Act. Under Section 35, Court of Wards Act:
The Court...may give leases...of the whole or any part of such property for such terms, as it thinks fit...and may generally pass such orders and do such acts not inconsistent with the provisions of this or any other Act for the time being in force as it may judge to be for the advantage of the ward or for the benefit of the property.
The Court of Wards has formally decided that the execution of this agreement is to the advantage of the ward. The Court must however be limited by the restrictions on alienation under the Impartible Estates Land Act. Section 4 (1) of that Act, provides that:
The proprietor of an impartible estate shall be incapable of alienating or binding by his debts, such estate or any part thereof beyond his own lifetime unless the alienation shall be made, or the debt incurred, under circumstances which would entitle the managing member of a joint Hindu family, not being the father or grandfather of the other coparceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the other coparceners independently of their consent.
It is well established that the managing member of a Hindu joint family can bind the joint family by a compromise made bona fide for the benefit of the estate and not for his personal advantage; vide, Mayne's Hindu Law, Edn. 10, page 402. An attempt has been made to argue that even granting the bona fide nature of the settlement accepted by the Court of Wards, it is necessary for the Court to examine critically the details of the bargain between the parties, in order to ascertain whether that bargain was really beneficial to the estate, the suggestion being that if there is reason to think that the Court might have made a better bargain than it did the compromise will not be binding on the estate. It seems to us that this is not the correct line of approach to a compromise entered into by a manager or representative of a Hindu joint family. No doubt if the bargain is so palpably unfair in its nature as to throw a doubt upon the bona fides of the manager, the details of that bargain may assume a very great importance. But where it is clear that there was an actual dispute the settlement of which was in the interests of the estate and that the dispute has been settled by a compromise which appeared to the manager to be a fair arrangement having regard to the contentions of the parties and one which was desirable with a view to prevent future litigation, it is not in our opinion open to the Court to nullify that compromise merely on the ground that one party appears to have driven a better bargain than the other party. The attack on the compromise in the present case rests mainly on assumptions regarding the bona fides of the claim by Vizianagaram to have title in an extent of 111/2 square miles in the Samidha forest and the suggestion is made that Vizianagaram was giving up practically nothing and was getting a lease of forest admittedly belonging to the Madgole estate for an inadequate rent. We see no reason to think that the claim put forward by Vizianagaram to the disputed area was one which was known to be unsubstantial. Although under this agreement Madgole gave up possession of the disputed area and of a further block admittedly belonging to Madgole, the estate was to get a very substantial rent and to be rid of all trouble and expense in connexion with the management of a block of forest admittedly not easy to administer by the Madgole officials. Moreover, the arrangement between the parties was made at a time when each of the estates was under the management of responsible Government officers who had no interest in the matter other than that of an official anxious to administer his charge to the best of his ability. We see no reason to think that this arrangement was unduly favourable to the Vizianagaram estate, nor do we consider that there are any grounds for thinking that the Court of Wards or the Agency Commissioner failed in their duty towards the Madgole estate in accepting the terms agreed upon. We are moreover of opinion that the contract between the parties is within the powers of the proprietor of an impartible estate, having regard to the existence of the dispute and the arrangements made for its settlement.
16. The question arising out of the non-registration of this agreement need not detain us long. The Registration Act does not apply to (the agency districts. The clause in the agreement relating to the Gudepa forest must be deemed to be one which purports to declare a right, title and interest of the value of more than Rs. 100 in immoveable property and by virtue of Section 49, the document cannot be used in evidence of the transaction relating to the Gudepa reserve in the absence of registration. This fact, however, has less importance now, seeing that in this Court the appellant has abandoned his claim to enforce against the respondent the surrender of rights in the Gudepa forest contemplated in Clause (1) of the draft agreement. There is no legal impediment to the admission in evidence of the unobjectionable portion of the document, part of which has to be excluded for want of registration; and seeing that the appellant is the person who stands to lose by the non-enforcement of clause (1), it is open to him to waive it: vide Samuvier v. Ramasubbier A.I.R. 1931 Mad. 580. It seems to us that the clause relating to Gudepa is clearly separable from the rest of the contract and that if the appellant who is the person adversely affected by the non-enforcement of this clause, is prepared to abide by the rest of the contract, the respondent cannot object to the enforcement of the rest of it: vide Hawksley v. Cutram (1892) 3 Ch. 359. In this view it is not necessary to go into the question whether the provisio to Section 49, Registration Act, is retrospective.
17. It has been contended for the respondent that specific performance should be refused by reason of the laches of the appellant and there was also a plea that the enforcement of the contract was barred by limitation. The latter plea is clearly untenable for there was no date fixed in the agreement for its performance from which limitation could run. Nor was there any express refusal to complete the agreement. The suit was brought within three years of the time when as a result of the final notice from the appellant, refusal to complete the agreement might be inferred. It seems to us also that there can be no question of laches in this case. When the statute provides a period of limitation for the bringing of a suit, the remedy of specific performance will not ordinarily be refused on the ground of delay if the suit is within the prescribed period. No doubt cases might arise in which the delay in filing the suit might have led the other side to infer that the plaintiff had waived his rights under the agreement and in such cases the plea of laches might be considered a ground for refusing specific performance. But there is nothing of the kind here. Quite clearly the Vizianagaram estate was throughout insisting on the completion of the agreement. There was no suggestion that the agreement would not be completed so long as the Court of Wards managed the Madgole estate. Even thereafter the Vizianagaram estate was pressing for the completion of the agreement and there was no clear indication of the attitude of the Maharajah of Jeypore in the matter. We are of the opinion that specific performance should not be refused by reason of the delay in filing the suit.
18. It has been suggested that specific performance should be refused because there was a lack of mutuality in the contract at its inception. We are unable to appreciate this contention. Section 35, Court of Wards Act, empowers the Court to bind the ward by a contract of this nature and such a contract could have been enforced against the Court of Wards and is therefore enforceable against the present proprietor of Madgole. There is therefore no question of mutuality. It was not suggested that the contract was unenforceable against the Rajah of Vizianagaram. In the result, therefore, the appeal is allowed and there will be a decree directing the respondent to execute a lease deed in the terms contemplated in the agreement accepted in Ex. CCC dated 23rd July 1921 and to embody therein the terms regarding the first year's rent accepted in the letter Ex. WWWW-1 dated 5th June 1926 and to. attach thereto the plans of the forest block to be leased, prepared at the survey of the boundaries at the instance of both parties. The first clause of the draft agreement relating to the Gudepa reserve will not be enforced. The lease deed will be executed within six months from today, failing which the Court will itself execute the lease. The appellant will be entitled to his costs throughout.