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 30th 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.
4. In appeal it is contended before us that the will of Hiinmat Singh was void ab initio and was wholly inoperative and no rights under it were validly created. No doubt it is stated in the will itself that the property disposed of was the ancestral property of Himmat Singh. It is also clear that at the time he made the testamentary disposition he had the adopted son, Ranjit Singh, alive who, from the date of adoption, acquired an interest as a co-parcener in the ancestral property. A member of a joint Hindu family cannot, without the consent of the other members of the family, dispose of his interest by will. He has no such authority. As was observed by the learned Chief Justice in the Full Bench case of Lalta Prasad v. Sri Mahadeoji Birajman Temple AIR 1920 All 116, (at p. 468 of 42 All.) the karta of a joint Hindu family has no power to make a bequest of the family property, whatever power he may have of making a gift inter vivos, because at the moment of his death his rights pass to the surviving members of the Hindu family and then there is a conflict between the right of survivorship and the alleged right under the will, and the right of survivorship prevails. The other learned Judges concurred in this view. Their Lordships of the Privy Council in the case of Lakhmi Chand v. Anandi AIR 1926 PC 54, (at p. 614 of 24 A.L.J.) approved of the view expressed by the Madras High Court that
its (the High Court's) reasons for making distinction between a gift and a devise are that the coparcener's power of. alienation is founded on his right to a partition; that that right dies with him, and that the title of his cosharers by survivorship vesting in them at the moment of his death there remains nothing upon which the will can operate.
5. But their Lordships pointed out that the case of the family arrangement contemporaneously made and acted upon by all the parties would be different and so would be the case where the other co-sharers of the Mitakshara joint family had given their consent.
6. It is therefore clear that Himmat Singh had no authority to make a testamentary disposition of the family property and that such a bequest of his was in no way binding on the other members of the family or their representatives. Their Lordships of the Privy Council have also drawn a distinction between a case where there is a mere covenant for giving an annuity to descendants generation after generation and a case where a charge is created. In Rajah of Ramnad v. Sundara Pandiyasami Tevar AIR 1918 PC 156 their Lordships in dealing with the contention that the creation of a kind of perpetuity which the law did not allow or an attempt to create a permanent relation which was impossible of creation could not be upheld, remarked:
Whatever might be said about that, if this agreement lay in covenant, seeing that it lies in charge, there is no difficulty in making it perpetual as long as there are lineal or collateral heirs or the grantee and in our view the District Judge and Seshagiri Ayyar, J., in the High Court were right in holding that this is a charge.
7. In that case also the charge had been created under a compromise of 1861 and a right to allowance was given to lineal heirs of some of the persons named therein. Their Lordships did not hold that such a provision created by a charge in any way offended against the rule in perpetuity. But as remarked above, Himmat Singh had no authority to dispose of the joint family property by will. It is equally clear that he could not create a charge by will. He had power, with the consent of the other members of the family, or in the case of a family settlement to creat a charge by a transfer inter vivos but he could not validly create a charge on the property to come into effect after his own interest had ceased and the successor got the estate by right of survivorship and not as his heir. We must accordingly hold that under the will of Himmat Singh no valid charge was in fact created on this property, and that the will was therefore wholly inoperative against the heirs and future transferees.
8. The next question is whether the position has been altered in view of the compromise of 1911. The parties to the present suits are either the parties themselves or the representatives of those in the previous suit. There can be no doubt that the compromise decree is binding on both parties. At that time the estate of Himmat Singh had become vested in some of the defendants and it was open to them to create a fresh charge on that property even though that charge was to remain subsisting for generations. Their Lordships of the Privy Council in the case of Lakhmi Chand v. Anandi AIR 1926 PC 54, although holding that a will by a member of a joint Hindu family of his co-sharers' interest was not a valid devise, held that where there had been a consent of the co-sharers an agreement for the devolution of the estate after the death of the co-sharers, though not in strict accordance with the rules of Hindu Law, was binding and operative. To such a case the rule laid down in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 Beng LR 377, prohibiting a bequest in favour of an unborn person would not apply and for the same reason the rule against a conditional grant of future interest in perpetuity in favour of persons unborn laid down in Chandi Churn Barua v. Sidheswari (1889) 16 Cal 71, would be equally inapplicable.
9. The next question is whether on a true interpretation of this compromise decree a fresh charge was intended to be created. The language is somewhat vague but we have no doubt in our minds that the parties intended to uphold the will in all its particulars with one modification as to the reduction in the amounts of annuities that were payable as already indicated above. At that time the defendants were successors to Himmat Singh. If they wanted to take up the position that the will was unenforceable against subsequent heirs and transferees they would not have entered into the compromise. By accepting the will and agreeing that it should be upheld, they necessarily agreed that the charge so created under the will for the annuities mentioned should be continued and should be effective as against the properties mentioned therein. We therefore think that there was nothing illegal in their agreeing by a fresh compromise to create such a charge or agreeing that the charge though previously created invalidly should thenceforward be continued
10. It has been found by the lower appellate Court that the appellants before1 us had previous notice of this charge. The charge is therefore enforceable against them. The decree of the lower appellate Court is right and the appeal is dismissed with costs. The cross-objections are not pressed and are dismissed with costs.