Judgement Appeal from a judgment and decree of the High Court (June 16, 1909) reversing a judgment and decree of the second Additional Subordinate Judge of the 24 Parganas. The suit was instituted by the appellants to redeem two mortgages of 1848 and 1871. In 1848 one Fazlul Karim mortgaged his zamindari and in 1850 conveyed it to Khodajanessa, his wife, as a gift. In 1853 she granted a patni lease of it under which there was a malikana amounting to over Rs.15,000 a year. After various immaterial proceedings, in 1870 an agreement was made between Khodajanessa and the then mortgagees by which the amount due upon the mortgage was to be discharged by annual payments out of the malikana. In 1871 Khodajanessa executed a second mortgage upon the property in favour of a different mortgagee. In 1873 the mortgagees under the mortgage of 1848 commenced a suit against Khodajanessa to enforce the agreement of 1871, A compromise was agreed to by the parties and a razinama drawn up. Under the terms of the razinama the amounts due to both mortgagees was agreed and the mortgagees agreed to release the property from the mortgages upon Khodajanessa agreeing to execute deeds of absolute sale or transfer by which a certain proportion of the malikana should be transferred to each of the mortgagees, the balance to remain her property, free from incumbrances. It was also agreed that the mortgagees should get their names registered as proprietors of the proportions of the property to which they were entitled under this arrangement. The compromise was filed, and on November 28, 1873, a decree was made that the suit be decided in pursuance thereof. The terms of the compromise were not recited in the decree. The compromise agreement was not registered and no transfers or conveyances were ever executed. It appeared, however, that all parties had given complete effect to its terms. Numerous transactions had taken place by the various parties on the basis of the property having been divided in the manner provided by the compromise. As instances of this, in 1875 Khodajanessa mortgaged the share reserved to her, the mortgage deed reciting the arrangement made by the compromise; again, in 1887, she made a deed of gift of that share, the deed of gift being attested by her sons. There had also been transfers of the interests of the mortgagees. As instances of this, in 1875 Khodajanessa mortgaged the share reserved to her, the mortgage deed reciting the arrangement made by the compromise; again, in 1887, she made a deed of gift of that share, the deed of gift being attested by her sons. There had also been transfers of the interests of the mortgagees. In 1878 the respective mortgagees had caused their names to be registered as proprietors of their shares, and there had been registration of mutation of names in respect of subsequent transfers by them. In 1908 the plaintiffs, as surviving heirs ar I representatives of Khodajanessa, instituted the present suit claiming to redeem the mortgages. The defendants (respondents) pleaded that the suit was barred by limitation, that under the compromise of 1873 the mortgages had come to an end, and that the respective mortgagees had been in possession of their shares adversely to Khodajanessa and the plaintiffs. The Subordinate Judge made a decree for redemption. He held that the terms of the razinama not being incorporated in the decree and not being registered or stamped could not affect immovable property. He also held that the possession was not adverse. The High Court allowed the appeal. The learned judges held that the mortgages of 1848 and 1871 were extinguished by the agreement and compromise of 1873 and that the right to redeem thereupon ceased to exist. It was accordingly not necessary to consider the question of limitation. De Gruyther, K.C., and Dube, for the appellants. The original title of the respondents was as mortgagees, and the onus is upon them to show that the right to redeem is extinguished. The compromise agreement of 1873 was required to be registered by the Registration Act, 1871, s. 17, and not being registered under that Act it was not effectual to transfer any right in the property Pranal Annee v. Lakshmi Annee. (( 1890) L. R. 26 Ind. Ap. 101.) The decree did not embody the terms of the compromise, and since it went beyond the scope of the litigation it could not properly be the subject of a decree Gurdeo Singh v. Chandrikah Singh. (( 1907) I. L. R. 36 Calc. 193.) As the compromise is inadmissible in evidence for want of registration, parol evidence of its terms is excluded by the Indian Evidence Act, 1872, s. 92, proviso 4. (( 1907) I. L. R. 36 Calc. 193.) As the compromise is inadmissible in evidence for want of registration, parol evidence of its terms is excluded by the Indian Evidence Act, 1872, s. 92, proviso 4. Mere acquiescence by the plaintiffs, or their predecessors, in the mortgagees possession is not sufficient to deprive them of their right to redeem Khiarajmal v. Daim. (( 1904) L. R. 32 Ind. Ap. 23.) Upjohn, K.C., and Dunne, for the respondents. The compromise agreement was a good executory agreement to transfer the right to redeem. Before the Transfer of Property Act, 1882, a transfer of immovable property could be by parol. The agreement has been continually acted upon in every respect by all the parties for thirty-five years. Under these circumstances any defects of form or of probation are cured by equity Maddison v Alderson (( 1883) 8 App. Cas. 467.); Rose v. Watson. (( 1864) 10 H. L. C. 672.) Further, the compromise agree ment does not come within the agreements referred to in s. 17 of the Registration Act, 1871. Its registration was optional under s. 18, sub-s. 4, of that Act. The provisions of the Indian Evidence Act, 1872, s. 92, do not apply; the agreement did not modify the mortgage deeds, but was an agreement to transfer part of the property included under them. De Gruyther, K.C., replied. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal, dated June 16, 1909. That judgment was pronounced upon and reversed a judgment and decree of the second Subordinate Judge of the 24 Parganas dated August 31, 1908. The object of the suit is for the redemption of two mortgages dated July 22, 1848, and April 4, 1871. The defence which has been sustained is that the right to redeem was extinguished many years ago, in circumstances which will now be mentioned. Many of the facts of the case are comprised in a chapter which may be said to have definitely closed in the year 1873 ; and it is accordingly unnecessary to narrate them in detail. After the 1848 mortgage was granted by one Fazlul Karim, his wife Khodajanessa obtained from him a conveyance of her husbands zamiridari as a gift in lieu of dower. This occurred in 1850. After the 1848 mortgage was granted by one Fazlul Karim, his wife Khodajanessa obtained from him a conveyance of her husbands zamiridari as a gift in lieu of dower. This occurred in 1850. In 1851 she began proceedings for redemption of the mortgaged properties. Many and various legal steps took place in that decade, and from at least the year 1863 no record remains of ay proceedings in the suit. It is admitted that no useful light can now be thrown upon that litigation—which, in any view, appears never to have been determined. In 1870 a certain agreement was executed by Khodajanessa and the three sons of Earn Chund Mukerji, the mortgagee under the agreement of 1848, in reference to that mortgage. A sum was fixed as the principal due and another sum as interest due, and arrangements were made for payment by yearly instalments and for management of the property and the like. On April 4, 1871, the second mortgage was granted. In 1873 differences, however, arose between Khodajanessa and the mortgagees, and a suit was brought by Ram Chund Mukerjis three sons to enforce against her the agreement come to. This suit was compromised. On November 26, 1873, Khodajanessa entered into a razinama, or agreement of compromise, which razinama was signed by the plaintiffs in that suit. What happened under it may be expressed in Khodajanessas own words in evidence given by her in a litigation in 1875, and printed on the record. In that suit on April 30 she testified as follows " The suit in the 24 Parganas Court was settled and a solenama executed by the three brothers, a deed of compromise, what is termed a razinama and safinama. On my agreeing to execute a conveyance of the 12 annas share to the three brothers, it was settled. The three brothers and myself all agreed and made the settlement. I spoke to all the three brothers on the subject of that settlement." The razinama contains a full narrative of the transactions with the property mortgaged, and of the financial embarrassments which had occurred. It appeared, as was the fact, that after the death of the patnidar of the property the realization of the rents had come under the charge of the Court of Wards. It appeared, as was the fact, that after the death of the patnidar of the property the realization of the rents had come under the charge of the Court of Wards. And the true point, so far as the present litigation is concerned, of the razinama was this, that it was arranged that from the year 1874 onwards the realization of malikana profits should be as follows To the plaintiffs in that case and Arun Prokash Ganguli " the malikana profits in respect of 12 annas, 7 gandas, 2 karas, 1 kag share and the Collectorate revenue both amounting to Rs.27,386.7.10 as per account given above, and I shall realise the profits in respect of the remaining 3 annas, 12 gandas, 1 kara, 3 kags share and Collectorate revenue both amounting to Rs.8013.8.10 kist by kist according to the terms of the kabuliyat." The other parties named were to get their names registered in the Collectorate. These parties, it may be mentioned, had expressly " consented to such arrangement and released the said taluqs and all the properties covered by the mortgage deed to me free from the liability for the debt." It is impossible to read this razinama without concluding that the mortgage debts were to be thenceforward for ever extinguished, that the property itself was to be divided among the parties in specific shares, and that with regard to one share—set forth as 3 annas, 12 gandas, 1 kara and 3 kags—it was to become and be dealt with by Khodajanessa as her separate property disburdened of debt. The remainder of the 16 annas was also to be similarly and separately owned and enjoyed. The concluding prayer of the razinama was " That the Court may be pleased to decide the suit declaring that the plaintiffs shall get the amount claimed to their satisfaction in the manner stated above." The razinama was accordingly produced to the Court, which pronounced upon it as follows " It is, therefore, ordered that the suit be decided in pursuance of the terms of the razinama, and that the suit be struck off from the list of pending cases." The point which is made against giving effect to this compromise is that a conveyance was not made by Khodajanessa in completion of the contract of purchase narrated in the razinama. This is true. This is true. But no written conveyance by the law of India was at the date of that transaction necessary, the Transfer of Property Act not being passed until the year 1882. But even if a transfer in writing had from a conveyancing point of view been omitted, or if some other formal defect had occurred, their Lordships are of opinion that this would have been unavailing to the appellants in the attempt made in the present suit to redeem the mortgages. For the points against opening up the transaction are manifold and are in their Lord- ships opinion conclusive. The compromise has been acted upon by all the parties to it, and by their successors in title from that date to this. The suit was dropped, the division of shares of the property was made, and it may be said generally that from its date until the date of Khodajanessas death in the year 1890, and, indeed, from that date until the present time, the property has been managed upon the footing of that division, of the extinction of the mortgage debts, of the division of the disburdened proprietary interests in the shares set forth in the compromise, and of the receipt and enjoyment of rents and profits accordingly. The details need not be given. As to Khodajanessa herself, her own view is set forth in her evidence as already given. A striking instance of her approbatory acting may be mentioned. In the same year, 1875, she executed a mortgage for her own 3 annas share, and in this deed she recites at length the whole transactions, the separation into shares and so forth. Transactions of mortgage, sale, &c, have been also carried out by the other sharers with reference to their properties. And, in short, it may be said that for a period of between thirty and forty years prior to the initiation of this suit the rights of all parties have been dealt with precisely upon the same footing as if Khodajanessa had made an express conveyance parting with the equity of redemption, and transferring allotted shares of the property itself to the mortgagees, and reserving one share to herself. In these circumstances their Lordships are of opinion that the proposition that the equity of redemption still remains with the representatives of Khodajanessa cannot be maintained. In these circumstances their Lordships are of opinion that the proposition that the equity of redemption still remains with the representatives of Khodajanessa cannot be maintained. Even if the razinama itself was insufficient, yet in their Lordships view the decree of the Court, to the sufficiency of which an objection was taken in argument, was obtained upon one footing, and one footing alone, i.e., that the parties to the suit had in fact arranged their rights in the property in terms of the compromise. Their Lordships, in view of the argument strongly pressed upon them, think it right further to say that even although the razinama and the decree taken together were considered to be defective or inchoate as elements making up a final and validly concluded agreement for the extinction of the equity of redemption, the actings of parties have been such as to supply all such defects. To use language common from very early times in Scotland, and highly approved in the case of Maddison y. Alder son (8 App. Cas. 467.), in the House of Lords, it is no doubt true that there is a locus penitentiae, that is," a power of resiling from an incomplete engagement, from an unaccepted offer, from a mutual contract to which all have not assented, from an obligation to which writing is requisite, and has not yet been adhibited in an authentic shape." This is the situation where the parties stand upon nothing but an engagement which is not final or complete. But where the actings and conduct of parties are founded on, then in all such cases, to use the language of Professor Bell in his Principles, s. 26, " rei interventus raises a personal exception, which excludes the plea of locus paenitentiae. It is inferred from any proceedings, not unimportant, on the part of the obligee, known to and permitted by the obligor to take place on the faith of the contract as if it were perfect; provided they are unequivocally referable to the agreement, and productive of alteration of circumstances, loss, or inconvenience, though not irretrievable." Their Lordships do not think that there is anything either in the law of India or of England inconsistent with it, but, upon the contrary, that these laws follow the same rule. In a suit, said Lord Selborne in Maddison v. Alderson (8 App. Cas. In a suit, said Lord Selborne in Maddison v. Alderson (8 App. Cas. 467, at p. 475.), founded on such part performance (and the part performance referred to was that of a parol contract concerning land) the defendant is really " charged " upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the Statute of Frauds) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. The Lord Chancellor then enumerates a series of acts referable to the parol contract, and he adds, "the matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded." Many authorities are cited in support of these propositions from English and Scotch law, and no countenance is given to the proposition that equity will fail to support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon. From these authorities one dictum quoted by Lord Selborne from Sir John Strange (1 Ves. Sen. 441) may be here repeated "if confessed or in part carried into execution, it will be binding on the parties, and carried into further execution as such, in equity." Their Lordships do not think that the law of India is inconsistent with these principles. On the contrary it follows them. A review by their Lordships of the judgment of the learned judges of the High Court of the case has convinced them that the facts have been correctly appreciated, and they concur with the legal result arrived at. Their Lordships will humbly advise His Majesty that the appeal should be dismissed with costs.