1. This is an appeal by the defendant which arises out of a suit for recovery of Rs. 675 principal and Rs. 152-2-3 interest.
2. Rani Deo Amma, widow of Raja Ling Rajendra Wadiar, executed a Will in favour Birbhadra Swami Jangam on the 12th May, 1891. The testatrix died, and Birbhadra Swami Jangam entered into possession of the entire estate. Upon the death of the latter his disciple, Mahant Rajeshwar Swami succeeded to the estate and, after him, the estate devolved upon the defendant in his capacity as disciple of Mahant Rajeshwar Swami.
3. Paragraphs 6 and 7 of the Will are material for the purpose of appeal. Paragraph 6 provides 'that out of the income from the interest and from my property the executor should pay Rs. 20 per month to my mother, Lachhmi Amma, who lives with me, and Rs. 15 per month to Balaji Jamadar and Rs. 7 per month to Munshi Jager Dev Prasad, who are my own servants and well-wishers, for their lives. As Balaji is an old servant of mine, it is incumbent on the executor to manage the temple and 'chhatter' with his advice, and the said servant should also do charitable works with the permission of the executor. After the death of these servants it is the duty of the executor and his successors-in-interest to pay the salary to the heirs and successors of these servants generation after generation by way of pension as mentioned above. In case of default, the servants aforesaid would be entitled to take proceedings according to law.' Paragraph 7 of the Will provides inter alia, that Balaji Jamadar should supervise the temple and the 'chhattar' and after his death, his heirs and successors should supervise the work of 'puja' in the temple and the 'chhattar'
4. Balaji Jamadar, the original recipient of the pension is dead. The plaintiff is the minor son of Balaji Jamadar. He claims to recover the arrears of pension due to him from the 15th September, 1922, Balaji Jamadar having died on the 15th August, 1922.
5. The suit was resisted upon the ground that the right to recover pension was conditional upon the performance of certain services, which are indicated in the Will, and that the plaintiff had neither done nor could do any work relating to the estate of Rani Deo Amma in accordance with the conditions laid down in the Will and that, therefore, the suit was misconceived. It was also contended that the plaintiff was not entitled to any interest.
6. A further plea appears to have been raised in the lower Appellate Court that the claim was barred by the rule of res judicata.
7. The Court of first instance held that the conditions laid down in the Will were directory and not mandatory, and that the plaintiff was entitled to arrears of pension notwithstanding the fact that he had not performed any services. The plea of res judicata was repelled. The Court of first instance, however, came to the conclusion that the rate of interest claimed was excessive, and allowed interest at the rate of 6 per cent, per annum.
8. The pleas raised in the trial Court were reiterated in the lower Appellate Court but were overruled save and except as to interest. The lower Appellate Court disallowed interest before the date of the suit and relied upon a decision of this Court in Jwala Prasad v. Hoti Lal 79 Ind. Cas. 1049 : 22 A.L.J. 558 : 46 A. 625 : A.I.R. 1924 All. 711.
8. It has been contended that, under the terms of the Will, the plaintiff is not entitled to recover any pension without performing certain services which are laid down in the document. (We are in agreement with the views of the Courts below that the conditions upon which particular emphasis has been laid by the defendant-appellant were directory and not mandatory Under, the circumstances, the plaintiff was entitled to claim arrears of pension which fell due after the death of Balaji Jamadar.
9. The Plea of res judicata has been urged. This plea was not specifically taken in the written statement. Reliance has been placed upon certain observations contained in the judgment of the District Judge of Benares, dated 29th January, 1926, in Civil Appeal No. 299 of 1925, between Shri Mahant Shiva Ling Swami Jangam against Mahadeo Appa. Balaji Jamadar had mortgaged his right to receive the Pension under the Will to Shri Mahant Shiva Ling Swami Jangam. The latter brought a suit for sale in enforcement of his mortgage Balaji was dead at the date of the suit and the claim was directed against the present plaintiff. The question raised in appeal before the learned District Judge was whether the respondent's father could mortgage his right to receive the allowance The District Judge, who heard the appeal, said that the right of pension is a personal right conditional on performing certain works and was not merely given to Balaji in recognition of his services. The observation of the learned District Judge on this point was no more than an obiter dictum. There was no question before him as to the right of the present plaintiff-respondent to receive pension. Under the circumstances, the finding of the learned District Judge on this point cannot operate as res judicata in the present action.
10. These were the only points which were argued in this appeal. We are of opinion that this appeal is without force, and is dismissed with costs.
11. The Court of first instance passed a decree against the estate of Rani Deo Amma and also personally against the defendant. In a previous suit, it was held by Mr. Harper in his judgment, dated 19th March 1925, that a large sum of money belonging to the estate of Rani Deo Amma was in the hands of the defendants which had not yet been accounted for. The plaintiff-respondent is entitled to execute his decree against the estate of Rani Deo Amm a in the hands of Mahant Shiva Ling Swann Jangam and to pursue his remedy against him personally in the event of his not accounting for such assets as he had originally received. To this extent, we would uphold the cross-objection and modify the decrees of the Courts below. We do not disturb the order of the lower Appellate Court as to interest. We make no order as to costs of the cross-objection.