JUDGMENT Maclean, C.J. - The first question which irises on this appeal if whether it is open to the Defendants to show that one Gyanoda Sundari, who was the predecessor in title of the Plaintiffs and under the will of Kristomoni Dassi, dated the 14th of August 1893, her universal legatee, was really a trustee for the testatrix's nephew, Lalit Mohun Sarcar, through whom the Defendants claim the property given by the will. 2. There is no authority in India upon the subject, statutory or otherwise ; and in the absence of any such authority, I doubt if it be open to the Defendants to adduce such evidence, unless we act in India upon the principle which, in cases of this class, is acted upon in the English Courts. In the English Courts it is open to those who claim the benefit of a secret trust to show that a gift by will, say to A, is really given to A on a secret trust for B. But it is an undoubted element in that class of oases that the party setting up such a secret trust must show that the trust was communicated to A by the testator and that A agreed to accept the property on those terms. If then we were to apply this English doctrine to Indian cases, we must apply the whole ; and in the present case it is admitted that there was no evidence to show that any such trust was communicated to Gyanoda Sundari, or that she accepted the property upon the terms of her being a trustee. I, therefore, decide the first point against the Appellant; the view taken in England is stated with great lucidity by Lord Cairns in the case of Jones v. Badley (1868) L.R. 3 Ch. A.C. 362. 3. I now pass to the second point. It is of an entirely different description. The second point is that what has been spoken of throughout the discussion as in the sulehnama of the 3rd of February 1891 was not admissible in evidence because it was not registered. A.C. 362. 3. I now pass to the second point. It is of an entirely different description. The second point is that what has been spoken of throughout the discussion as in the sulehnama of the 3rd of February 1891 was not admissible in evidence because it was not registered. The facts as to that are these : Kristomoni Dassi had made a will previous to that of the 14th of August 1893 and by that will, which is dated the 17th of Chaitra 1287, she gave her property to her two brothers, Ishwara and Sridhara; Sridhara died leaving a son, Lalit Mohun, to whom I have already referred and his sister, Gyanoda Sundari. After Kristomoni's death Ishwara propounded the first will and 'Gyanoda propounded the second will. Each applied for Letters of Administration. They then presented this document of the 3rd of February 1894 by way of a petition to the Court. It was signed both by Gyanoda and Ishwara. No order was made on the petition: on the contrary, the Court said it could not act upon it and Letters of Administration with the will annexed were granted to. Gyanoda The question is whether this document falls within Sub-section (b) or Sub-section (h) of Section 17 of the Indian Registration Act. It recited the facts I have stated, as well as the two applications for probate and then it said: "The above two cases have been amicably settled amongst us on the terms following:--that I, Gyanoda Sundari Dassi, will get a ten-anna share of all moveable and immoveable properties left by the said Kristomoni, deceased and I, Ishwara Chandra Sarkar, will get the remaining six-anna share." After these allegations, the prayer was that Letters of Administration might be granted to the two. Then it says: " Be it explicitly expressed that, after taking out the Letters of Administration, I, Gyanoda Sundari Dassi, shall amicably take ten-anna share and I, Ishwara Chandra Sarkar, shall take six-anna share of the moveable and immoveable properties after dividing the shares by demarcation." No order was made upon this application. This instrument is a non-testamentary instrument: the question is whether it purports or operates to create or declare any right, title or interest in any immoveable property of the value of over 100 rupees. It is conceded that the property here is over that amount. This instrument is a non-testamentary instrument: the question is whether it purports or operates to create or declare any right, title or interest in any immoveable property of the value of over 100 rupees. It is conceded that the property here is over that amount. I think it clearly purports or operates to create or declare the rights and interests of the brothers and sister in the property in dispute and consequently that it required to be registered. I do not see how we can fairly bring this document within Sub-section (h) and say that it creates a right to obtain another document, which will when executed "create, declare, assign or extinguish any such right, title or interest." There is no reference to the execution of any other document. The case is governed in principle by the Privy Council decision in the case of Pranal Anni v. Lakshmi Anni ILR (1899) Mad. 508 : L.R. 26. IndAp 101. 4. Lastly, it was said that the Plaintiffs had notice of this agreement. I do not think that helps the Defendant. There is no finding upon that one way or the other. If they had, they would only have notice of an agreement which required registration and which without registration would be inadmissible in evidence against them. 5. Those are the only points argued and in my opinion, they fail and the appeals must be dismissed with costs. Geidt J. 6. I concur