BABU SINGH Vs. MTLAL KUER

JUDGEMENT

(1.) This is an appeal by some of the defendants arising from a suit to recover arrears of annuity as a charge on some immovable property. It appears that one Himmat Singh had adopted a son, Ranjit Singh, and after the adoption he executed a registered will dated 30 March 1882 by which he provided that two of his daughters, Mt. Ganesh Kunwar and Mt. Lal Kun-war, should be maintained out of the profits of his property and they should be given Rs. 75 a year as an annuity each. He further provided that a relation of his named Lalta Singh should get an annuity of Rs. 32 a year. He also specifically provided that these annuities should be a charge on immovable property consisting of a 10 biswas share in village Satahin Dalippur. According to the finding of the lower appellate court Ranjit Singh does not appear to have challenged the will although it is suggested on behalf of the respondents that he died while still a minor. His heirs and transferees do not appear to have challenged the will.

(2.) In 1911 a suit was instituted by some of the legatees and their representatives for recovery of the arrears of the annuities against the prodecessors-in-title of the present defendants-appellants. It is now admitted before us that the appellants are the legal representatives of the defendants who were parties to that litigation. The plaintiffs in that suit had asked for the enforcement, of the charge and the realisation of the amount of the arrears by sale of the property on which they alleged that there was a charge under the will. The defendants at first disputed the will but ultimately there was a compromise between the parties which was incorporated into the decree of the Court. Under this compromise the parties agreed that the will in question should be declared to be proved with one exception, that the amounts of the annuities should be reduced from Rs. 75 to Rs. 25 each, so far as the daughters were concerned, and from Rs. 32 to Rs. 10 so far as Lalta Singh was concerned. There was a further agreement that in case certain lands which were fallow at the time-were brought under cultivation the legatees would be entitled to get a half share in the rents. It is noteworthy that at that time Lal Kunwar and Ganesh Kunwar, the daughters of Himmat Singh, were the plaintiffs but the defendants were the reversionary heirs of Ranjit Singh deceased.

(3.) The present suits have been filed by Lal Kunwar and the sons of Lalta. Singh and by the sons of Ganesh Kunwar. Some of the defendants are transferees or heirs of the original defendants to the suit of 1911. The Court below has held that the will was not void abinitio and it was open to Ranjit Singh to challenge it, but inasmuch as his heirs did not challenge it, on the other hand, they approved of it in the suit of 1911, the will was quite valid, As regards the compromise decree the learned Judge is of opinion that it cannot operate as res judicata against the plaintiffs claim. He has therefore decreed the suit.