Asutosh Mookerjee, J.
1. This is an appeal by the defendant in a suit for specific performance of a contract to grant a permanent lease. The agreement was made on the 20th September 1897 and was in respect of hinds which at that time formed the subject-matter of a litigation between the defendant and the Secretary of State for India in Counsel. The contract was for the grant of a lease by the defendant to the plaintiffs, if the former should obtain a decree in for suit against the Secretary of State. That suit was decided in favour of the defendant by the Judicial Committee on the 21st March 1906; and the plaintiffs commenced this action against the defendant on the 20th February 1909. The defendant denied that she and entered in to the alleged agreement with the plaintiffs and also contended that if the agreement was established, it was of such a character that a Court of equity would not grant specific performance thereof. The Subordinate Judge has overruled the contentions of the defendant and has decreed the suit. The defendant has now appealed to this Court. The fundamental point for consideration is whether the agreement alleged by the plaintiffs has been proved, find this involves the determination of the question, whether a petition of compromise which embodies the agreement to grant the lease, and a decree which recites the terms of the compromise, are admissible in evidence to prove the terms of the agreement. For the appreciation of the question raised, it is necessary to give a brief outline of the facts antecedent to this litigation.
2. The lands in respect of which a permanent lease is claimed by the plaintiffs are included in Instate No. 1 of the Rajshahi Collectorate, in which the defendant had 2 annas 15 gundas share with a separate account. In 1863, when the dry lands emerged from the floods, Watson and Company, the predecessor-in-interest of the plaintiffs, entered into possession. The predecessor-in-title of the defendant, Maharani Sarat Sundari, instituted a suit for ejectment of the company. The Subordinate Judge dismissed the suit; but on appeal to this Court, that decree was reversed on the 152th February 1868 and a decree was made in favour of the then plaintiff for such of the lands as were proved to be accretions to Mouza Jatashai. An appeal to the Judicial Committee was preferred, but was dismissed for want of prosecution in 1875. The lauds decreed in favour of the plaintiff shortly afterwards disappeared in the river. When they re-appeared, Government took possession of part of the lands and leased them to the Company, while the Company took possession of the remainder. There were negotiations between the defendant and the Government for a settlement of the dispute, but their were in fructuous as the Government consented to withdraw from possession, only if the rights of the Company were recognised. In these circumstances, the defendant instituted two suits in 1895 for recovery of possession, one (No. 72) against the Secretary of State in respect of accretions to Mouza Jatashai, the other (No. 78) against the Company in respect of re-formations on the original site of Jatashai. On the 20th September 1897, the suit against the Company was decreed on the basis of a petition of coin-promise. It is this petition of compromise, which embodies the agreement to lease now sought to be specifically enforced, the petition refers to the lands of both the suits; as regards the lands of the suit against the Company, the petition provides for the creation of tenancy rights in the Company on certain specified1 conditions; while as regards the lands of the suit against the Government, the petition recites that the then plaintiff had agreed to grant a permanent lease to the Company on certain specified terms, in the event of a successful termination of her claim against the Government. The Court recorded the compromise in full, as it was bound to do under Section 375 of the Code of 1882, and made a decree in these terms: The suit be decreed in terms of the compromise filed by both the parties.' It may be a matter for controversy whether the Court intended to incorporate in its decree all the terms of the compromise or to give effect only to such of the terms as related to the lands in suit; at any rate, under Section 375, the Court had jurisdiction to pass a decree in accordance with the compromise only in so far as it related to the subject-matter of the suit, and its decree would be final only to such extent. I may take it, consequently, that the decree while it recited all the terms of the compromise, gave effect to such alone of the terms as related to the subject-matter of that suit. It is on this basis that the Company seek in the present suit the specific performance of so much of the agreement as related to subject-matter of the suit against the Secretary of State. The question necessarily arises, whether the petition of compromise, which embodies the terms of the agreement to lease, or the decree, which recites the terms of the compromise, is admissible in evidence, notwithstanding the provisions of Section 49 of the Indian Registration Act. On behalf of the defendant, it has been argued that as under Section 3 of the Registration Act, 1877, the term lease includes an agreement to lease, under Section 17, Clause (h) an agreement to grant a lease of immovable property for any term exceeding one year is compulsorily registrable, ft has been pointed out that neither Clause (h), which exempts from registration documents merely creating a right to obtain other documents, nor Clause (i), which exempts from registration decrees and orders of Courts, is of any assistance to the plaintiffs, as these clauses apply only to cases under Clauses (b) and (c) of Section 17 and do not affect cases under Clause (d). There is considerable force in this contention and it is worthy of note that in the ease of Panchanan Basu v. Chandi Charan Misra 6 Ind. Cas. 443 : 37 C. 808 : 14 C.W.N. 874 the attention of the Court was not drawn to the extended significance of the term lease as defined in Section 3, nor to the fact that Clause (h) of Section 17 refers only to cases under Clauses (b) and (c). It cannot be disputed that as laid down by the Full Bench in the case of Sufdar Ruza v. Amzal Ali 7 C. 703 : 10 C.L.R. 121 an agreement for a lease, when in writing, is compulsorily registrable under Clause (d) of Section 17. But the question remains what is the precise effect of non-registration. Section 49--I quote so much of the section as is applicable to the present case--is in these terms: 'No document required by Section 17 to be registered shall affect any immoveable property comprised therein or be received as evidence of any transaction affecting such property, unless it has been registered in accordance with the provisions of this Act.' The petition of compromise, consequently, does not affect the immoveable property now in dispute; but can it he received as evidence of a transaction affecting such property? The answer will he in the affirmative or negative, according as it is held that the agreement to lease did not or did affect the property, it is plain from the terms of the agreement that it did not operate as a present demise. The distinction between a lease and an agreement for lease may be briefly stated. An instrument by which the conditions of a contract of letting are finally ascertained and which is intended to vest the right of exclusive possession in the lessee either at once, if the term is to commence immediately, or at a future date, if the term is to commence subsequently, is a lease; it is said to operate by way of actual demise, and when the lessee has entered under it, the relation of landlord and tenant is fully created. On the other hand an instrument which only binds the parties, the one to create and the other to accept, a lease hereafter, is an. agreement for a lease, and although the intending lessee enters, the legal relation of landlord and tenant is not created, unless he also pays rent, in which case he becomes tenant from year to year, upon the terms of the agreement so far as applicable to a yearly tenancy: Richardson v. Gifford (1834) 3 N. & M. 325 : 1 A. & E. 52 : 3 L.J.K.B. 122. This is subject to the rule in Walsh v. Lonsdale 21 Ch.D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109 that on equitable grounds the Court may under certain circumstances treat the parties to be in the same position as if a lease had actually been granted, on the principle that equity considers that to have been done which should have been done. Consequently where, as here, there is no present demise the agreement to lease does not operate as a lease and does not affect the land. It will affect the land only when specifically enforced in a suit properly framed for the purpose of or when followed by the grant of a lease. On this principle, it was ruled in Konduri Srinivasa Charlu v. Gottumukkala Venkataraju 17 M.L.J. 218 that in a suit for specific performance of a contract to grant a lease, an unregistered deed containing the alleged agreement is admissible in evidence to prove the contract for the breach of which the suit is brought. This principle was approved in Satyendra Nath Bose v. Anil Chandra Ghose 5 Ind. Cas. 38 : 14 C.W.N. 65 and is the foundation of the decision in Sarat Chaandr Ghosh v. Sham Chand Singh Roy 14 Ind. Cas. 701 : 39 C. 663 : 16 C.L.J. 71. I am not prepared to adopt the contrary view taken in Hurjivan v. Jamsetji 9 B. 63 and Pwrmanand Das v. Dharsey 10 B. 101. I hold accordingly that the petition of compromise has been rightly received in evidence in proof of the agreement to lease.
3. The question next arises, whether the petition was executed by the defendant. She says in her evidence that she signed the solehiucniak, and put in the word iti on every page and that her seal was impressed above her signature on every page. The solehnamah, as actually filed in Court, bears her signature on the first page only with the impression of her seal above it, the other pages do not bear her signature but bear the impression of her seal in the back. She denies that the word ill on the sheets other than the first is in her handwriting. The obvious suggestion is that the original sheets other than the first have been replaced after the document had been executed by her. No such allegation was made expressly in her written statement, and I am in full agreement with the Subordinate Judge that the evidence is insufficient not only to prove such a case, but even to raise a reasonable suspicion that there had been a substitution of sheets after execution. No foundation is laid in the evidence as to the identity of the person possibly guilty of such a crime; in the absence of any evidence on the point, I am not prepared to countenance the theory that the Company or their officers had bribed her officers to enter into a conspiracy to betray their mistress. On the other hand, upon a careful comparison of the word iti which finds a place on every sheet, I am satisfied that the word, wherever it occurs, was written by the same person; and as the word on the first sheet was admittedly written by her, the word on each of the other sheets is in her hand writing; this conclusively establishes the genuineness of: all the sheets including the one containing paragraph 8, which embodies the agreement to lease and is suggested to have been interpolated fraudulently. I am not prepared to attach any weight to her assertion that every sheet must have been sealed as well as signed by her in the usual course. I cannot overlook the fact that the document was executed on the 20th September 1897, and she gave her deposition on the 11th July 1909. It would be an extraordinary feat of memory to be able to remember accurately, after the lapse of twelve years, whether one had signed one or more pages of a document and how many times the seal had been put thereon; it is not suggested that she had any occasion to make a special note of this matter at the time of execution or to recall it to memory at any subsequent period. On the other hand, her deposition shows that she is not able at this distance of time to recollect accurately the details of the negotiation and the terms of compromise ultimately settled. I am satisfied that the petition of compromise, as it stands, is genuine in its entirety, and as the defendant admits that the petition signed by her was executed after she had become fully aware of its contents, there is no room for controversy that she is bound by all the terms of the petition inclusive of the agreement to lease embodied in paragraph 8. This really concludes the case; as the defendant signed the petition with full knowledge of its contents, there can be no question that the agreement to lease was made as alleged by the plaintiffs; in this view, it is needless to consider whether the Pleader who filed the petition in Court on the strength of a new vakalatnama was duly authorised; nor is it necessary to examine the oral evidence as to the negotiations between the officers on both sides which preceded the actual execution of the petition by the plaintiffs and the defendant and their respective Pleaders. But I may add that on a scrutiny of the evidence I am satisfied that the Subordinate Judge has correctly held that the terms as finally embodied in the petition of compromise are identical with those actually agreed upon between the parties. The failure of the defendant to examine important witnesses on her side, namely, her survey Am in Ashutosh, her Jamanabis Srisnarayan, her manager Ambica Charan and her sister's husband Gobinda Chandra, as also her omission to produce important documentary evidence, namely, the draft of the solehnamah, are matters for legitimate adverse comment and tend to throw suspicion on her case. Much stress has been laid on the fact that even after the compromise with the defendant, the Company helped the Government officers in the suit brought by her against the Secretary of State. But the explanation is obvious: the Company had not undertaken to remain neutral, much less to assist the defendant; the Company were re free to help the Government officers with to information and they did so because they no would not lose even if the defendant was a defeated. The Company would be able to be take a lease from Government, and that on easier terms than from the defendant, to whom they would have to pay a profit in addition to any revenue that might been assessed by Government. I hold accordingly that the agreement to lease of which the plaintiffs seek specific performance has been fully established.
4. Two subordinate questions have been argued on behalf of the defendant, namely, first, that the plaintiffs have not succeeded to the right of Watson and Company to? enforce specific performance of the agreement to lease, and secondly, that the terms of the agreement are so vague and indefinite that the Court should not grant specific performance thereof. There is no substance in either of these contentions. As regards the first point, it is plain, on the conveyance taken by the plaintiffs, that they have succeeded to the contractual right vested in their vendors. As regards the second point, the Subordinate Judge has correctly interpreted the terms of the agreement to lease. It would be an obviously unreasonable construction to hold that the defendant agreed to grant a permanent lease of the disputed lands to the Company, only on receipt of the Government revenue; there is no conceivable reason why she should thus make a free gift of the lands to the Company after she had successfully litigated against the Secretary of State. The only reasonable construction is that the Company undertook to pay her Government revenue in addition to rent at the rate fixed for the lands of Suit No. 73, that is 4 annas 6 pies per high a, and, this is the view adopted by the Subordinate Judge. The suggestion has been faintly made that even this rate is too low, but I do not feel pressed by this contention; it must be remembered that the rate of 4 annas 6 pies per big ha is the rate. fixed for the lease of the lands of suit No. 73, and that from the year 1319, the defendant would be entitled to get rent at such rates as may be in force in the vicinity. I may add that the mere fact that the Government has not assessed any revenue on the lands (which were found to be re-formation and not accretion) does not entitle the defendant to claim rent at a higher rate than 4 annas 6 pies per big ha up to the year 1318; I express no opinion upon the question, what would be fair rent for revenue-free lands with effect from 1319. As the plaintiffs have not taken any cross-objection, the Court cannot also consider whether the decree is too favourable to the defendant.
5. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.
6. I agree that this appeal should be dismissed with costs, though my reasons for considering the compromise petition and the decree in Suit No. 73 of 1895 admissible in evidence differ somewhat from those given by my learned brother. The view, which I take, is that, the petition was not an agreement to lease and, therefore, Section 49 of the Registration Act can have no application. It was a petition presented on behalf of the then plaintiff, defendant in the present suit. It is headed 'the petition of the plaintiff Rani Hemanta Kumari,' and runs as follows: 'Being apprehensive as to the future result of the said Suit No. 73 of 1895, which I have instituted in this Court against Messrs. Robert Waston & Co., Ltd., for the lands mentioned in the schedule and which is still pending, now with the consent of both of us tins suit is compromised according to the manner mentioned below.... ' Then follow the terms set out in 8 paragraphs. The effect of these terms is that the plaintiff's title as proprietor to the lands in suit is recognised, the Company will be given a lease of those lands on certain terms, and also be given a lease of the lands the subject-matter of Suit No. 72 in case of a successful termination of that suit against Government. Then follows the prayer, hence by filing this solehnaina with the consent of the defendant Sahibs, it is. prayed that after going through the above statements the present suit may be decided in terms of the aforesaid terms.' Then follow the schedule of the boundaries and the signatures of the Managing Agents and the Pleader of Messrs. Waston & Co. as consenting to the petition.
7. To my mind this simply amounts to a statement to the Court by the plaintiff that the parties have come to certain terns, the accuracy of which statement is accepted by the Managing Agents and Pleader of the Company, accompanied by a prayer that the suit may be disposed of accordingly. The document itself is not sin agreement to lease but a statement of fact, accompanied by a prayer in a petition to the Court.
8. If the terms had been stated orally to the Court, the Court would have been bound to make a record of the whole of them, under Section 375 of Act XIV of 1882, though the decree of the Court would have been final only as far as it related to the subject-matter of the particular suit. Por the convenience of the Court or for the purpose of. ensuring accuracy, the terms were put on paper, but that fact does not alter the real nature of the petition, or convert what is really a prayer to the Court into an agreement to lease.
9. The decree was equally admissible in evidence. As already remarked, the Court was bound to record the whole of the terms of the compromise. The promise to give a lease of the land, which was the subject-matter of Suit No. 72, was part of the consideration to the Company for consenting to a decree in Suit No. 73. If any authority is required for the proposition that the decree would be evidence, it may be found in the case of Pranal Anni v. Lakshmi Anni 22 M. 508 : 26 I.A. 101 : 3 C.W.N. 485 : 9 M.L.J. 147 (P.C.). The Privy Council remarked: 'If the parties, after agreeing to settle the Suit of 1885 on the footing that they were each to take a half share of the lands involved in that suit, and also a half share of the lands now in dispute, had informed the learned Judge that these were the terms of the compromise and had invited him, by reason of such compromise, to dispose of the conclusions of the suit of 1885, their Lordships see no reason to doubt that the order of the learned Judge, if it had referred to or narrated these terms of compromise, would have been judicial evidence, availablo to the appellant, that the respondents had agreed to transfer to her the moiety of land now in dispute.' That language applies to the circumstances of the present case. Section 17 of the Indian Registration Act does not, to my mind, create any real difficulty. It is true that the documents referred to in Clauses (e) to (n) of that section are excepted only from the provisions of Clauses (b) and (c) and not from the provisions of Clauses (a) and (d), but that is because the documents enumerated in Clauses (e) to (n) come within the description of documents in Clauses (b) and (c) only and not within the description of documents in Clauses (a) and (d).
10. As regards the facts I consider it clearly established that the whole of the petition of compromise is genuine and that that part of it which contains paragraph 8 was not a fraudulent interpolation. And I come to this conclusion not merely on the undoubted similarity of writing of the word 'iti' in the various places in which it occurs, for the similarity of writing of a single word taken by itself would be a misleading test. But the learned Subordinate Judge has put the matter very clearly and forcibly, in dealing with the 6th and 7th issues, on page 155 of the paper-book. He points out that the defendants admittedly signed a solehnama, which was fair copied from a draft prepared by the principal officers on both sides and that she was aware of its contents, that there was evidence that this solehnama was the identical one which was filed in Court and that evidence to the contrary, if plaintiffs' story were untrue, was available to the defendant, but was withheld.
11. The question of the authority to compromise of the Pleader, who tiled the petition of compromise, becomes immaterial in the view that the defendant signed the compromise petition in the form in which it now is. The argument is that he had authority to compromise, but his authority did not extend to the inclusion of matters contained in paragraph 8 of the petition. His authority was contained in a vakalatanama filed on the 20th September 1897, the same day on which the compromise petition was filed. The vakalatnama contains a precis of the contents of the petition of compromise, but there is no reference to the subject-matter of paragraph 8 of that petition. Though the question of his authority to compromise is immaterial, this vakalatnama deserves notice as a piece of evidence supporting defendant's case that the petition which she signed was added to before its presentation in Court.
12. A possible explanation of the omission of the subject-matter of paragraph 8 from the precis contained in the vakalatnama is that it went beyond the subject-matter of the suit which was to be compromised.
13. But there are other matters in connection with this vakalatnama which deserve notice. The Pleader in question, Babu Narahari Mookerjee, was examined as a witness for the plaintiff. He states that lie got the petition of compromise from Sirish Narain Prochanda, the am-mukhtar of the defendant, to be filed. Srish Narain, it may be mentioned, is one of the witnesses who ought to have been called for the defendant. The explanation, given for not calling him, based on the allegation of his dismissal from defendant's service, does not carry conviction. To satisfy himself the Pleader asked for a vakalatnama specifying the terms of the compromise, signed by the defendant. Yet having got the vakalatnama he says lie did not read the petition of compromise as who had no time, it was brought to him just before the rising of the Court, and he took Sirish Narain's word that its contents corresponded with what was written in the vakalatnama. In cross-examination this statement was modified, the witness admitting that the petition was brought to him the day before it was filed. It is clear that the petition was not brought just before the rising of the Court and filed at once, for the order sheet of the record shows that on the tiling of the portion the Judge ordered the case to be called up that day for orders, and later on the same day decreed the suit in terms of the compromise, Further having asked for a vakalatnama to satisfy himself as to the terms of the petition of compromise the Pleader did not trouble to compare the two, and finally when the decree was drawn up in accordance with the compromise petition it was he who signed it on behalf of the defendant.
14. Various theories for his conduct are possible either he was satisfied that the portion of compromise was covered by the terms of the vakalatnama, and the contention advanced for the plaintiffs was that the word ityadi' was wide enough to cover the terms of paragraph 8, or he knew that the petition of compromise went beyond the terms of the vakalatnama, and tiled it honestly because he believed it to have been signed by defendant, or he filed it dishonestly in the interest of Robert Watson & Co. It is also a possible theory that the difference in the two documents was due to design as a means of subsequently attacking the compromise.
15. Now, had he intended to act dishonestly in the interest of Robert Watson & Co., there was no necessity for him to get a fresh vakalatnama specifying the terms of the compromise, for under his original vakalatnama of the 1st April 1895 (Exhibit 20) he had authority to file petitions of compromise. The reasonable view is that he made himself acquainted with the terms of the petition of compromise and filed it because he believed it to be in order; but he is now doing what he can to support the position taken upby the defendant. That the defendant did not cease to trust him is shown by the fact that he drafted her written statement in the present suit and acted for her in the suit till cited as a witness by the plaintiffs.
16. It is further clear that the compromise was part of a policy of reconciliation between the parties. In 1896, Bhuban Babu, a Pleader, had been trying to have disputes amicably settled, and in the following year, the year of the compromise in question, disputes in regard to a large number of villages were settled. A few appeals in cases between the parties were prosecuted, but generally speaking there was a settlement of disputes between them. Crawford says he was particularly insistent on having the land in Suit No. 2 included in the compromise or he would not have compromised Suit No. 73. These facts are sufficient answer to the argument that it was unlikely that the defendant would have given up the land for which she had been and still was fighting Government.
17. There is no force in the argument that that part of the contract referred to in paragraph 8 of the petition cannot be enforced as it was for a lease of accretions to defendant's land, whereas in fact the land was found by the Privy Council to be a reformation in situ. It is clear the parties contracted for a lease of the land which was the subject-matter of Suit No. 72. A misdescription of it will not affect the contract, especially when it appears that the present defendant was claiming the land in Suit No. 72 on the alternative plea that it was either a reformation in situ or an accretion to her estate.
18. My learned brother has dealt with the questions of the terms on which the lease was to be given and of the plaintiffs' title. On these points I have nothing to add.